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The American Prospect - articles by authorenComic Strips: Lame Duckhttp://prospect.org/article/comic-strips-lame-duck
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">B</span>ack when the world still cared about Gary Condit (which<br />
is to say, not too long ago), the politically conservative comic-strip duck<br />
Mallard Fillmore doled out some predictable partisan criticism: "Before the<br />
Chandra Levy story, ABC, NBC and CBS usually referred to Congressman Condit's<br />
party affiliation! Now 92% of the time, they don't!" Dramatic pause. And then,<br />
"I'm not sure whether that reflects their liberal bias or if they just figure<br />
that once you say 'intern' and 'affair,' saying 'Democrat' is sort of redundant."</p>
<p>
Created by Bruce Tinsley in 1991, <i>Mallard Fillmore</i> runs in about 400<br />
newspapers across the country, including <i>The Washington Times,</i> <i>The Boston Globe,</i><br />
and the <i>New York Post</i>--often next to Garry Trudeau's liberal strip <i>Doonesbury.</i><br />
Its mouthpiece is a duck hired as a television reporter at "WFDR" in Washington,<br />
D.C., to fill the station's "Amphibious-American" quota. Mallard typically quacks<br />
and moans that government is too big, tax cuts are too small, gun control is too<br />
strict, and schools are too lenient. He complains quite specifically about the<br />
Democratic Party.</p>
<p>
Mallard is crisply drawn and, on occasion, he does surprise--as when, during<br />
the 2000 presidential primary, he asked Governor George W. Bush to explain his<br />
stance on affirmative action. The reply: "Mallard, if I answer that question, it<br />
won't end there! Next, you'll ask about taxes, or foreign policy! It's a slippery<br />
slope, and I'm not gonna play that game!" </p>
<p>
But for the most part, Mallard's jokes are predictably right-wing. On<br />
abortion: "You should probably vote Democratic if you think of your two-year-old<br />
as being in his 'eleventh trimester.'" On affirmative action: "By Super Bowl 37,<br />
each team will be required by law to have at least 25% ugly cheerleaders." On the<br />
Occupational Safety and Health Administration: "The only safe business is one<br />
that's out of business." Not surprisingly, Mallard took frequent potshots at Bill<br />
Clinton and did not let up even as the president was about to leave office.<br />
(Question: "Why is there a two-month gap between the election and the<br />
inauguration?" Mallard's answer: "In this case, I'd say that's how long the Oval<br />
Office fumigators requested.") The strip doles out its judgments without the<br />
garnish of even minimally developed plot or character. There is no show, only<br />
tell. There is a word for this, and that word is <i>propaganda.</i></p>
<p>
Mallard snipes most frequently at the supposed liberal media bias: "One thing<br />
about Dan [Rather] . . . he's no Jim Jeffords. . . . Nobody has to worry about <i>him</i><br />
changin' his party affiliation." And: "Good evening. This is Peter Jennings,<br />
reminding our viewers that whatever bad news you're about to hear, Reagan and<br />
Bush did it too! Now for our top story." Tinsley even groused for a full week<br />
over liberal cartoonist Trudeau, whom he protrayed as a Twinkie. (Mallard:<br />
"Garry, did you just not bother to verify your assertion that the president's<br />
I.Q. is half of Bill Clinton's, or were you just lying?" The Twinkie: "When you<br />
make stuff up as often as I do, Mallard, it's not lying, it's a leitmotif!")</p>
<p>
<span class="dropcap">B</span>ruce Tinsley's conservative politics, he told <i>The Washington<br />
Times,</i> came from attending school in the sixties, when teachers indoctrinated the<br />
students about the evils of the Vietnam War. After having to listen to lectures<br />
explaining "why Bob Dylan is greater than Shakespeare," Tinsley turned away from<br />
his professors--and to the writings of William F. Buckley, whom he describes as<br />
his "Jack Kerouac." He even kept his hair short. Tinsley argues that he created<br />
Mallard for "the forgotten American taxpayer who's sick and tired of a liberal<br />
media and cultural establishment that acts like he or she doesn't exist."<br />
Fighting words, sure--but are they accurate?</p>
<p>
Not really. The Sunday comics are actually quite conservative as a<br />
rule. They do not change much over years, even decades. Calvin never graduated<br />
first grade, nor did his overqualified classmate Susie Derkins; and Charlie Brown<br />
always fell for Lucy's football prank. The strips are meant to be reassuring, not<br />
daring; safe, not provocative; droll, not biting; Bob Saget, not Chris Rock. </p>
<p>
Case in point: Comic-strip families are overwhelmingly nuclear in structure<br />
(<i>Calvin and Hobbes, Dennis the Menace, For Better or for Worse</i>), with the father<br />
winning the bread and the mother baking it (<i>Hi and Lois, Hagar the Horrible</i>) for<br />
a family as white as the picket fence that embraces its middle-class home<br />
(<i>Blondie, The Family Circus</i>). Dozens of newspapers suspended <i>For Better or for<br />
Worse</i>--and scores of readers defected--after one of its characters came out as<br />
gay. When Blondie, wife of Dagwood Bumstead, changed careers from homemaker to<br />
caterer (hardly a staggering metamorphosis), the prospect of the wife earning<br />
income rocked the marriage so hard that the couple ended up seeing a counselor. </p>
<p>
Readers apparently want the comics pages to reflect a 1950s-era status quo;<br />
and perhaps with this in mind, comics-page editors have historically been more<br />
responsive to criticism from the right than from the left. After the September 11<br />
attacks, when <i>The Boondocks</i> showed one of the main characters calling the<br />
terrorist hotline of the Federal Bureau of Investigation to turn in suspects<br />
helping Afghan extremists ("All right, let's see. . . . The first one is Reagan.<br />
That's R-E-A-G . . ."), several papers temporarily stopped publishing the strip.<br />
And during the Watergate investigations, papers sometimes refused to run<br />
Doonesbury if it commented on the scandals.</p>
<p>
"Few crusades are launched on the comics page; few boundaries are breached;<br />
few taboos are broken," wrote Jeff Shesol, creator of <i>Thatch</i> in <i>The Washington<br />
Post.</i> Shesol has liberal credentials--he worked for the progressive Pat<br />
Schroeder, and Bill Clinton hired him as a speechwriter in 1998--but even his own<br />
cartoon exemplifies the funnies' dedication to tradition and convention. <i>Thatch</i><br />
started at the peak of the "politically correct" movement, when Shesol was a<br />
senior at Brown University (the nursery of the movement), and gained momentum by<br />
criticizing all that is p.c. The cartoon started showing up in <i>The Wall Street<br />
Journal,</i> and the <i>National Review</i> invited Shesol to do a strip. </p>
<p>
<i><span class="dropcap">M</span>allard</i> goes about 10 steps further than most Sunday strips<br />
and makes politics its focus. It does what conservatives have traditionally been<br />
best at doing, especially on talk radio: reducing knotty social arguments to<br />
glib, simplistic quips. The format allows <i>Mallard</i> to sneak false analogies<br />
and faulty reasoning past readers--an easy thing to accomplish, because only a<br />
few panels are used to convey a point, and readers are unlikely to spend more<br />
than seconds with them over breakfast. Last year, for instance, <i>Mallard</i><br />
presented "The Liberal Lexicon 2000: stupid stuff we hope they'll stop saying in<br />
the new century." He defined terms such as <i>syndrome</i> ("word used to reduce<br />
reprehensible actions to mere symptoms of some vague societal ill"),<br /><i>compassion</i> ("sorrow for the troubles of others, accompanied by a strong<br />
desire to force somebody else to help them"), and <i>community</i> ("a word<br />
liberals put at random into sentences in order to sound enlightened and<br />
tolerant").</p>
<p>
<i>Doonesbury,</i> to be fair, has long been associated with liberal<br />
criticism of conservative politicians; Trudeau is a conservative bête<br />
noire. (One 1980s collection of his strips was called In <i>Search of Reagan's<br />
Brain.</i>) And readers have asked their newspapers to place both <i>Doonesbury</i> and<br /><i>Mallard</i> on the editorial page; some publications have complied. But <i>Doonesbury</i><br />
doesn't quite fit with the columns because the strip fleshes out story lines and<br />
delves into specific characters' struggles; the commentary is secondary, a<br />
backdrop. <i>Mallard,</i> on the other hand, is more of an editorial cartoon, with<br />
self-contained one-liners and characters that merely serve to convey political<br />
messages. Moreover, <i>Doonesbury</i> is at least some of the time an equal-opportunity<br />
satirizer: Plenty of Democrats fall victim to Trudeau's often brilliant wit.</p>
<p>
Even as a political cartoon, <i>Mallard</i> is not a vigorous critique of liberal<br />
thought but its flip dismissal. Though Jay Kennedy--editor in chief at King<br />
Features, which syndicates the strip--has said that <i>Mallard</i> "helps define the<br />
issues people are thinking about," the strip really fails in this mission. It<br />
does not make for provocative discourse but allows its readers to decline<br />
invitations to political debate--and to wallow in snideness. "You should probably<br />
vote Democratic," Mallard says, "if: You think Trees can feel pain [showing a man<br />
in a "Save the Shrubbery" shirt standing in front of a tree], but unborn babies<br />
can't." This fails as substantive criticism--which would be fine, if only it were<br />
also funny. But it's simply not. For a cartoon strip that eschews both narrative<br />
drive and character development, to fail at both criticism and at humor is<br />
deadly. It's time for Mallard to go the way of the dodo.</p>
<p></p></div></div></div>Tue, 22 Jan 2002 22:48:43 +0000142432 at http://prospect.orgAlexander NguyenThe Assault on Mirandahttp://prospect.org/article/assault-miranda
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><font class="nonprinting articlebody"></font></p>
<p><font size="+2" color="darkred"><b> B</b></font>enbrook Lake near Fort Worth, Texas, is the kind of place where fishermen catch sandbass and lovers wake up to a tequila sunrise. But on a December day in 1983, violence came to Benbrook Lake in the person of Ronnie Dale Gaspard. He was affiliated with the Bandidos, a motorcycle gang whose members snorted methamphetamine off the tips of knife blades, and he was going there to settle a score. Which is why he was in a car and not on his bike. Which is also why he had been drinking a large amount of whiskey.</p>
<p>Gaspard was giving a ride to 23-year-old Denise Sanders. As they approached the lake, Gaspard stopped the car. Sanders stepped outside, clueless. A year or so prior, she had testified against the Bandidos, sending some of them to jail for drug trafficking. She shouldn't have done that, Gaspard thought, before he got out of his car and shot her in the head.</p>
<p></p><p>It wasn't long before police seized Gaspard and charged him with the murder. And then something happened that is the stuff of bad television drama. The police read Gaspard his Miranda rights. "You have the right to remain silent... . You have the right to an attorney... . " Gaspard asked for a lawyer but then confessed before the lawyer arrived. When these events later came to light in court, a judge suppressed Gaspard's confession, noting that it had been taken improperly after the accused had requested an attorney--a violation of Miranda procedures. Gaspard walked out free, smirking. "Nothing ever bothered me as much as seeing that guy walk out of the courthouse," the assistant district attorney was quoted as saying. "But there's nothing I can do. He is off and free."</p>
<p>Cases like this are rare, but they pack an emotional punch. Conservatives have argued for years that Miranda rights are an example of the way the criminal justice system bends too far to protect the guilty. The requirement to give the Miranda warning at just the right time, in just the right way, conservatives argue, has restricted law enforcement officers, has discouraged confessions, and has sometimes freed guilty criminals based on "technicalities."</p>
<p>"Miranda stands out as the single most damaging blow inflicted on law enforcement's ability to fight crime in roughly the last half-century," according to Paul Cassell, a law professor at the University of Utah who has emerged as the leading opponent of the Miranda doctrine. In a case last year before the conservative Fourth Circuit Court of Appeals, Cassell argued that if a confession can be shown to have been voluntarily given, it shouldn't matter whether there was a Miranda violation. Ruling in <i>Dickerson v. United States</i>, the court agreed. The justices decided that Miranda merely helps protect the constitutional right to avoid self-incrimination, but that there is no constitutional right to be informed in a strictly prescribed way of the right to remain silent and to have an attorney present. The U.S. Supreme Court agreed to review the case and is expected to hear arguments in April. At stake, criminal justice observers say, is a method of handling the rights of the accused that has become widely accepted in the law enforcement community, though not always followed to the letter since the Supreme Court made its original Miranda ruling more than three decades ago. </p>
<p></p><p><font color="darkred"><b>Ernesto Miranda's Confession</b></font></p>
<p></p><p>In its 1966 <i>Miranda v. Arizona</i> decision, the Supreme Court examined Ernesto Miranda's confession to kidnapping and sexually assaulting a mentally retarded woman. It turned out that police had failed to verbally inform him of his right not to talk and to have an attorney present at questioning. Therefore, Miranda's confession was inadmissible evidence. Unless police could back up suspects' statements with a signed form showing that the suspect had "voluntarily, knowingly, and intelligently" waived his constitutional right not to incriminate himself, the Court reasoned, such statements would not be allowable. </p>
<p></p><p>The Miranda ruling--along with other landmark Warren Court decisions, such as <i>Mapp v. Ohio</i> (forbidding admission of illegally obtained evidence) and <i>Gideon v. Wainwright</i> (providing attorneys for indigent criminal defendants)--changed the rules of the game in significant ways. The decisions ensured a fairer balance between individual rights and the state's interest in criminal prosecution. For the most part, supporters of those decisions say, the new rules stopped the infamous "third degree" by police during interrogations--physical coercion in the form of beating suspects with a rubber hose, for example, or plunging a suspect's head into a toilet. Occasional cases of brutal police interrogations still make the news, but police investigations on the whole are more professional and physical abuse has declined, longtime observers say.</p>
<p>According to conservatives, though, there have been unintended consequences, such as giving people like Ronnie Gaspard an undeserved break. Cassell has argued that as many as 28,000 violent criminals may be let off the hook each year because of the Miranda rules--an astounding claim.</p>
<p></p><p>Could Miranda have such a sweeping effect? Critics dispute Cassell's findings, noting that he derives them from the "crime clearance rate"--the rate at which police solve crimes. Cassell calculated that early in the 1960s police solved about 55 to 60 percent of criminal cases. By the end of the decade, the rate had fallen to 45 percent. He attributes that change entirely to Miranda. "But that's junk science of the silliest sort," says Stephen Schulhofer, a law professor at the University of Chicago, who believes that police solved crimes at a lower rate because crime soared during the 1960s while funding for police departments nationwide stagnated. Tracking "clearance capacity"--the number of police officers assigned per 100 violent crimes reported--Schulhofer reported that in 1960, 115 officers were assigned per 100 felonies, but only 51 were in 1968. "I don't think there's any mystery," says Schulhofer, about why the crime clearance rate dropped. In the 1990s, it should be noted, violent crimes fell to the lowest levels since 1973, when the Department of Justice first started recording the statistics. That doesn't speak to how many people are let off on "technicalities," but it casts some doubt on the claim that Miranda has significantly undermined law enforcement.</p>
<p>In fact, the law enforcement community does not uniformly view Miranda procedures as an impediment. Many police authorities say the Miranda rules are a useful tool in professional police work because they force police and prosecutors to gather scientific and forensic evidence to build a solid case. And studies suggest there has not been a decline in the rate at which the accused make confessions; it continues to hover at roughly 64 percent, which is what it was in the pre-Miranda era.</p>
<p>Having a prosecution blocked--as Ronnie Gaspard's was--because of a Miranda violation is so unusual that many people with long careers in law enforcement have never seen it happen. "How many cases were thrown out because of Miranda?" says Sergeant Norberto Huertas, a 22-year veteran of the Hartford Police Department in Connecticut. "None that I can think of." "How many times have I been able to suppress a confession because of Miranda?" says Page Kelley, a Cambridge, Massachusetts, public defender in her 14th year. Kelley rolls her eyes. "None." According to a 1987 Chicago survey, suppression motions succeeded in less than 1 percent of criminal cases--about four cases out of 10,000.</p>
<p>One of the reasons police and prosecutors have learned to live with Miranda is that the rules have not radically changed law enforcement. "The majority of suspects waive their rights," says Lieutenant James Blanchette of the Hartford Police Department. "Surprising, isn't it?" The usual procedure works like this: A suspect is apprehended, informed of his rights, and then invited to talk things over. If he is willing to talk, he is given a waiver form. Signing on the line at the bottom, he attests that he is aware of his rights and is speaking voluntarily. Various studies, including one by Cassell himself, have found that suspects waive their rights at an overwhelming rate--80 to 90 percent of the time.</p>
<p>So while the Supreme Court looks at the question this spring of whether police departments should be held to strict Miranda procedures, there are other equally important and crucially related questions: Are Miranda rules working well enough? Are they serving their original goal of providing fairness to suspects who may be ignorant of their rights, primarily the indigent or the illiterate? Is the brick wall that conservatives see blocking police work in actual practice a minor speed bump?</p>
<p></p><p><font color="darkred"><b>Going through the Motions</b></font></p>
<p></p><p>At the Middlesex Superior Court in Cambridge, Massachusetts, Frank Ward seems to know everybody. He high-fives the bailiff. He asks prosecutors if they saw <i>The Practice</i> on TV last night. He discusses his current cases, which would normally be a breach of attorney-client privilege, if Ward were a lawyer. But he is a client, having been arrested for petty offenses ranging from larceny to drug use. By his own estimate, police have read him his Miranda rights more than 30 times, and by his own appraisal, the warnings don't do much. "Miranda is a big joke," he says. "It doesn't protect you from anything. It doesn't help or hurt you."</p>
<p></p><p>Ward says that officers usually usher him, handcuffed, into the booking room at the police station where another officer will read him his rights through a plexiglass window. "When they read it, you just nod and acknowledge it," he says. "They'll say, 'Do you understand?' And then you say, 'Yeah.' And then you sign the form."</p>
<p>Suspects waive their Miranda rights at a high rate because cops for the most part have turned them into a bureaucratic formality, according to George Thomas, a law professor at Rutgers University. "Police have learned to be very clever about giving warnings. They make them seem routine. They'll say, 'What's your name, what's your address, how old are you, and by the way, you have these rights.'"</p>
<p>Police usually inform suspects of the rights by reading from a wallet-sized card they carry. The training manual of the Boston Police Department tells its officers that Miranda rights "can be administered in a variety of ways." Police can give a detailed explanation if they are so inclined. "The better practice," according to the manual, "is recitation by the officer, who reads the warnings from his card." Simply reading the rights abides by the letter of Miranda, but not its spirit, since police officers should also be prepared to explain the rights to suspects, according to Dennis Roberts, a criminal-defense lawyer in Oakland, California. "I make cops do it in court," he says. "They schlepp it out, it's usually dog-eared, and then they read it in a monotone; they have no idea what they're saying. It's a talismanic incantation of the words."</p>
<p></p><p><font size="+2" color="darkred"><b> A</b></font>ccording to Richard Leo, a professor at the University of California, Irvine, who studies criminal interrogations, police have developed sophisticated and deceptive tactics that allow them to bait suspects into waiving their Miranda rights. "Criminal Interrogation and Confessions," the leading training manual for police interrogations, recommends, for example, that interrogators stand in front of the suspect while holding a thick folder as a prop. While talking, the interrogator "should finger through the case folder to create the impression that it contains material of an incriminating nature about the suspect." In this manner, police not only downplay the significance of Miranda rights; they have developed subtle tactics that make a waiver seem advantageous to a suspect.</p>
<p>Techniques such as the following are fairly typical. In a 1996 case in Sacramento, California, police took Kentrick McCoy into custody, photographed him, and then started to interview him.</p>
<blockquote><p>Interrogator: I also need to know the real truth because I'm not sure she's telling us the whole story.</p>
<p>Suspect: What, what is she trying to say?</p>
<p>Interrogator: Well, she's alleging that you pointed the gun at her.</p>
<p>Suspect: Uh-huh [negative]. Nah-uh.</p>
<p>Interrogator: Alright, before we, before we do that, I, like I said I know there's more to the story than she's telling us. But-- Suspect: I don't even know her, you know what I'm saying--</p>
<p>Interrogator: Whoa, whoa, whoa. I can't take your statement until we get through that Miranda issue.</p>
<p>Suspect: Oh.</p>
<p>Interrogator: You can't tell me anything until we get through that.</p>
</blockquote>
<p>"There's a lot of ways to get around Miranda," a homicide detective told The Washington Post in 1998. "Most guys know how to get somebody to waive their rights."</p>
<p>But even if police read the rights quickly or in a perfunctory manner, prosecutors and police officers have said--and the courts have generally agreed--that there is nothing puzzling about the right to remain silent. Except for rare cases (for example, 11-year-old defendant Nathaniel Abraham, asked by Ed Bradley on <i>60 Minutes</i> if he understood his Miranda rights, said, "No, no. I didn't understand. He had some white piece of paper and he's reading my rights"), the presumption--one supported by the cultural ubiquity of Miranda warnings on cop shows on television--remains that suspects already know their rights and that reading them is generally enough. "Ninety-one percent of all 13-year-olds can already recite Miranda," said Richard Moran, a professor of sociology at Mount Holyoke College, in a radio interview last June.</p>
<p>"Think about it," says Roberts, the criminal-defense attorney. "You're the DA, and someone says he didn't understand his rights. All you have to do is say, 'You said the confession was involuntarily given. Well, you know what a lawyer is, don't you? You understand what rights are, don't you? You know what that means; you went to third grade. Yeah, and you saw <i>Perry Mason</i> or <i>Ally McBeal</i>, right?' It's not that hard to establish."</p>
<p>So, if suspects understand their right to silence, why do so many go on to sign waiver forms and make confessions without the advice of a lawyer?</p>
<p></p><p><font color="darkred"><b>Understanding Your Rights</b></font></p>
<p></p><p>In its original Miranda ruling, the Supreme Court argued that "in-custody interrogation ... contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." By telling suspects about their constitutional rights, the Court hoped to neutralize the psychological home-field advantage of the police over the lone suspect inside the interrogation room. This was to ensure that statements would truly be voluntary and, by extension, not violate the Fifth Amendment. </p>
<p>Yet the tactics police departments have developed are so effective that police have even been able to extract false confessions from innocent suspects--a baffling phenomenon, but evidence that interrogations have continued to be psychologically compelling. This may be because Miranda never really addressed the most important of the "inherently compelling pressures" of police interrogations: the belief that if suspects keep quiet, they will look guilty. The root of this problem may be in the actual wording of Miranda itself. The warnings indicate the consequences of talking to the police ("Anything you say may be used against you in a court of law"). But they do not indicate the consequences of refusing to answer questions--which, in theory, should be nothing other than the continued presumption of innocence. It may be ignorance of this fact that causes suspects to waive their rights at such a high rate. </p>
<p>"If you have the right to remain silent, that means that there will be no adverse consequences if you don't talk," says Carol Steiker, a criminal-law professor at Harvard Law School. "But cops don't say that if you invoke Miranda, nothing bad will happen to you--but that's what it means to have a right." In fact, a suspect's refusal to speak after being read his rights cannot even be brought up at a later trial, says Anson Kaye, press secretary at the Middlesex district attorney's office in Massachusetts. In this sense, the problem with Miranda is not that suspects do not understand what it means to remain silent. It is that they do not understand the concept of <i>rights</i>. "[If you don't talk], they'll just make stuff up," says one criminal defendant interviewed for this story, who asked to remain anonymous. "They'll lie on your report, so it's on your behalf to just talk to them. Then they'll say you cooperated."</p>
<p>The original Miranda decision stated that warnings were needed "to make [the suspect] aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege." But how can a waiver be intelligently made if Miranda does not fully inform the suspects of the consequences of remaining silent and leaves instead the impression that silence is equivalent to guilt?</p>
<p>"If I were to tinker with Miranda," says Geoffrey Packard, a public defender in Cambridge, Massachusetts, "I would say, anything you say can be used against you. However, if you choose not to, that fact will not be used against you."</p>
<p></p><p><font size="+2" color="darkred"><b> M</b></font>iranda rights were intended to promote fair and equitable treatment for suspects who are not necessarily aware of their rights or are reluctant to exercise them. "Poor people are not going to say, 'Leave me alone, or I'll call my lawyer,'" says Packard. But they have imperfectly fulfilled their mandate by allowing police to downplay the significance of the rights they recite, or to make it seem in the suspect's interest to waive them. "I'm talking about the Mirandas of the world, the Hispanics, the blacks, the people in the ghettos and the barrios who don't know about their rights," said Harvard Law Professor Alan Dershowitz several years ago in a PBS interview. "We're not talking there about coercion necessarily. We're talking about fooling somebody into giving up a right that the Constitution gives them."</p>
<p>Whether it is a matter of "fooling" suspects or not, the Supreme Court has in the past recognized that there is a higher standard required by police than "going through the motions." Ernesto Miranda's own signed confession, after all, contained a typewritten paragraph saying that his statement had been made voluntarily and that he had full knowledge of his constitutional rights. But the Supreme Court ruled that because his rights hadn't been verbally explained to him, he hadn't been truly informed: "The mere fact that he signed a statement which contained a typed-in clause stating that he had 'full knowledge' of his 'legal rights' does not approach the knowing and intelligent waiver required to relinquish constitutional rights." When the Supreme Court reconsiders the case this spring, it might well ask if the Miranda warnings themselves, as they are used in actual day-to-day practice, have succeeded in giving suspects the full knowledge of the rights they are so often asked to sign away. ¤</p>
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<hr size="1" /></center></div></div></div>Wed, 19 Dec 2001 21:08:21 +0000140602 at http://prospect.orgAlexander NguyenA Conversation with John Judishttp://prospect.org/article/conversation-john-judis
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>John Judis [<a href="/print/V11/11/judis-j.html">"Al Gore and the Temple of Doom," TAP Vol. 11 Issue 11</a>] is a senior correspondent at <i>The American Prospect</i> and a senior editor at <i>The New Republic</i>. He recently published a book titled <a href="http://info.wordsworth.com/www/esales/isbn=067943254X/ampr"><i>The Paradox of American Democracy: Elites, Special Interests, and the Betrayal of Public Trust</i></a>. </p>
<p></p><p>Q: Tell me a little about how the book was conceived. </p>
<p></p><p>A: There were three different themes that run throughout the book, but the title captures only one of them. The questions I had were first, what characterizes the 1990s politically, from when the Reagan Revolution ran out of gas to the present? Why and how does that time differ from periods of political and economic reform like the 1960s, the New Deal, or the Progressive Era? Why haven't we had those kinds of reforms at this time? </p>
<p></p><p>The second question was to revisit the 1960s and to look at the impact that era had, and still has, on our lives. It has almost had the same kind of impact the Civil War had on the 40 to 50 years of the late nineteenth and early twentieth century. </p>
<p></p><p>The third question is about what is properly called the paradox, which is this: I was raised in the 1960s to believe that one of the main problems with democracy was these elites, these upper-class characters, who were secretly dominating American government and economics, and that political movements should try to eliminate their role. It was a thesis introduced by C. Wright Mills and elaborated on by William Domhoff. But after I moved to Washington in the early 1980s, I became increasingly convinced that the problem wasn't so much the <i>existence</i> of elites but what the people who would have been members of this political elite were <i>doing</i> with their time and experience: They had become lobbyists on K Street and were not working on behalf of their own ideals but on behalf of the very narrow, short-term objective set by their employers. </p>
<p></p><p>Q: The conclusion many draw from C. Wright Mills in <i>The Power Elite</i> is that elites make a democracy somehow less democratic. But you argue the opposite and trace how elites such as the Founding Fathers themselves have been crucial to how democracy works. How is that? </p>
<p></p><p>A: If you look at American history, starting in the eighteenth century through the present, there's a very special idea of what an elite is and what the responsibilities of elites are. The [elite] consists of a group of people whose idea is to rise above class, to rise above narrow interests, and to be disinterested. That was an ideal that was very much part of the Founding Fathers' [vision]. It was to some extent set back in the Jacksonian era because it became so identified with antidemocratic oligarchy, but was revived in the late nineteenth century by Woodrow Wilson, the Adamses, Henry Cabot Lodge, Teddy Roosevelt, and others. It was revived as part of a movement to reform government and make it more responsive rather than less. So what you had beginning in the late nineteenth and early twentieth century was the creation of elites who in many ways looked back to the Founding Fathers and who have this different view of themselves we would associate with the ruling class or upper class.</p>
<p></p><p>Q: You say in your book that, in recent times, the elite has abdicated its responsibility, how corporate and financial interests, short-term and personal goals, have crowded out the bigger mission of unifying business and labor for the common good. And when the public found out that private interests were the motivation, it undermined the credibility of all elites. You write that the change was "like a monarch debasing the coin of the realm by adding nickel to the silver. Once the public figured out that many of the silver coins contained nickel, all the coins became worthless." How did that come about? </p>
</div></div></div>Wed, 19 Dec 2001 19:23:44 +0000139231 at http://prospect.orgAlexander NguyenThe Agony of Victory:http://prospect.org/article/agony-victory
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>In football, if your team wins the game, homecoming is where you savor the victory, spray champagne on your teammates, recount the winning touchdown and gloat about crushing your opponents. This Presidents' Day weekend GOP homecoming was . . . different. The 28th Annual Conservative Political Action Conference, held in the Marriott in Arlington, Virginia -- one of the largest annual gatherings of conservatives -- was as paranoid as it was vindictive.<br /></p><p><br /></p><p>Inside the speaker's auditorium, it was as if Republicans were still out there on the field nervously looking for some Democrats to clobber. The schedule featured panel discussions, defensively titled, "How Bush Can Fight the PR Assault from the Left," "Republican Control of the Government: Can It Last?" and "De-funding the Left." House Majority Whip Tom DeLay's screed was titled, "<i>Bipartisanship</i>? The View From The House." All this begged a simple question: With Republicans in control of the presidency, both houses of Congress, and -- apparently -- the Supreme Court, why the bunker mentality?<br /></p><p><br /></p><p>Perhaps it could be the guilty conscience associated with having assumed the presidency without a popular mandate, I thought. Or maybe after eight years of getting walloped by Bill Clinton at almost every turn (okay, well, lots of turns), these attack dogs have no idea how to rule gracefully.<br /></p><p><br /></p><p>Without a nemesis in the White House, conservatives hunkered down to hunt and kill the enemy within. The new scumbag? John McCain. Kentucky Senator Mitch McConnell proudly announced to thunderous applause why he had filibustered campaign finance reform in the Senate: "No one's ever won on that issue. McCain-Feingold ranks right up there with Americans' concern for static cling." At a luncheon, <i>The National Review</i> distributed copies of the magazine with the cover story entitled, "The Spoiler: John McCain's Angry Crusade."<br /></p><p><br /></p><p>In addition to McCain bashing, conservatives used their speeches to beat some <i>long</i>-dead horses.<br /></p><p><br /></p><p> Barbara Olson, author of <i>Hell to Pay: The Unfolding Story of Hillary Rodham Clinton</i> introduced Robert Bork, who had been a professor at Yale Law School when Hillary Clinton was a student there: "I asked Bork about Hillary, and he said, 'She wasn't necessarily a student, but she did attend my classes.'"<br /></p><p><br /></p><p>Gary Kreep of the U.S. Justice Foundation quipped, "When my wife's mother was in a coma, we left the TV on the Bork nomination hearings. She woke up soon afterwards." <i>Hating Whitey</i> author David Horowitz even ranted about <i>Chappaquidick</i>.<br /></p><p><br /></p><p>After milking the Marc Rich tempest for all he could, the (unpardoned) Oliver North resurrected the pre-Clintonian bogey -- communism. North proclaimed, "The adversary against which we must arm ourselves is communist China!" After the applause died down, North gloated, "I said the dirty two words that no one else wants to speak."<br /></p><p><br /></p><p>Coming of age during the Clinton era, young conservatives too seemed to have learned to oppose, not propose. When a <i>Cornell Review</i> writer accosted me in the lounge, passing out invites for a party that the New York delegation of college Republicans was throwing that night (Hotel staffers broke up the party at about 9 o'clock), I asked what he liked to cover:<br /></p><p><br /></p><p>"Oh, anti-gay stuff."<br /><br />"Anti-gay stuff?"<br /><br />"Yeah, I just don't think they should protest."<br /><br />"How did you become a Republican?"<br /><br />"I read the <i>Cornell Review</i> and agreed with everything they said."<br /><br />"Like what?"<br /><br />"Everything."<br /><br />"Any specific issues?"<br /><br />"I can't remember. Oh actually, the anti-gay stuff."<br /></p><p><br /></p><p> Upon tedious questioning, I eventually found out that this student also opposed taxes, affirmative action, environmental regulations, and gun control. But he, like so many other students there, was flustered by the question of what he actually favored.<br /></p><p><br /></p><p>The same was true in the ideology fair going on in one of the ballrooms. Represented were Regent University (a college established for conservatives), the Second Amendment Sisters and an organization that posted a large banner proclaiming in dactylic meter, "Family values forever, gay rights never!"<br /></p><p><br /></p><p>The staffer at the 60 Plus Association seeking to eliminate the inheritance tax invited me to join. When I argued that I am far from 60, he looked at me wistfully and said it was never too early to start fighting taxes. "Don't you at least want to participate in our slogan writing contest for the best slogan against the death tax? I'll warn you though that Steve Forbes's 'No taxation without respiration!' is a tough act to follow."<br /></p><p><br /></p><p>College and high school students wearing "Impeach Hillary" buttons held their own luncheon at the Young America's Foundation, featuring Jonah Goldberg from <i>The National Review</i>. (Goldberg is also the son of Linda Tripp's vicious gossip-dishing book agent <a href="http://www.lucianne.com/">Lucianne Goldberg</a>.) During the question and answer session students asked, among other things, "How do we rebut the liberals who are our peers -- the ones who say that George W. Bush is not our president?" Goldberg's answer: "If your opponent is making a jackass out of himself, let him. Also, mocking helps."<br /></p><p><br /></p><p>Vice President Dick Cheney tried in vain to indoctrinate the crowd with the new administration's talking points. "The days of the so-called war room and the permanent campaign are over," Cheney pronounced. "This president and this administration are going to change the tone in the city of Washington." Perhaps in Washington, but not in the Mariott in Arlingon, Virginia. Here, it seemed, the war had just begun.<br /></p><p><br /></p><p>The contrast between Cheney's compassion-oozing and the rest of the conferees' venom-spewing seemed utterly baffling. But Chuck Cunningham of the National Rifle Association finally made it all clear. Cheney's speech would be nationally televised, while the rest of the conference was mostly geared towards the hard-core attendees. Said Cunningham in a statement captured by National Public Radio: "Fear does excite people more than optimism. And for that reason, some conservative groups didn't fare too well amongst the Reagan years because they lost donors and members because there was a perception that the dragon was slain." So for the sake of the faithful, revive the dragon. Long live the dragon.<br /></p><p></p>
</div></div></div>Wed, 19 Dec 2001 19:15:52 +0000139404 at http://prospect.orgAlexander NguyenThe GOP's False Consistencyhttp://prospect.org/article/gops-false-consistency
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p></p><p>"The Statue of Liberty says, 'Send me your poor, your sick, your tired, your huddled masses yearning to breathe free,'" sermonized John McCain, admonishing government officials to keep Elián González in United States rather than returning him to his father in Cuba. &#13;<br />
&#13;<br /></p><p>When the Clinton Administration decided to return the boy, George W. Bush and Steve Forbes -- in high campaign gear -- accused Clinton of hobnobbing with Fidel Castro. "[The boy] is Bill Clinton's human sacrifice to Fidel Castro, and it's a disgrace," said Forbes. A House resolution to return Elián to his father garnered only five Republican votes. Even anti-immigrant Pat Buchanan has sided with the party line. &#13;<br />
&#13;<br /></p><p>The Republicans seem to have selective memory when it comes to the Statue of Liberty's message, however. In 1996 for example, arch-conservative Senator Jesse Helms of North Carolina proposed an amendment to the immigration bill giving states the right to deny public education to the children of illegal immigrants, essentially denying them citizenship rights. (Send me your huddled masses, but their kids can't go to school?) At the end of January, Helms helped introduce a bill into Congress that would present Elián with a certificate of naturalization from the Attorney General. &#13;<br />
&#13;<br /></p><p>Similarly, Trent Lott stalled on a 1998 proposal restoring food stamps to legal immigrants -- which Congress denied them under the 1996 welfare reform act -- saying that the $818 million saved would be better spent on highways. But recently, he also co-sponsored the proposal granting little Elián his certificate of naturalization. (If he stays, can he eat?) &#13;<br />
&#13;<br /></p><p>The Republican consensus is especially surprising because keeping Elián in the United States directly contradicts his father's plea to send him home to Cuba. With Republicans across the country piously stumping on family values, such a move is plain hypocrisy. &#13;<br />
&#13;<br /></p><p>Take George W. Bush. In every education speech, he stresses that it is vital for parents to choose their children's schools; he also wants to give parents federal education funds to pay for tutoring or "anything that gives their children a fighting chance at learning." In one education speech, Bush used the word "parents" 26 times. But Bush thinks Elián's parent should not be able to raise him or even choose what country he lives in, let alone select his school.&#13;<br />
&#13;<br /></p><p>Same with John McCain. As he gives impassioned speeches in favor of denying Elián's father custody, he righteously calls for school vouchers because <i>parents</i> -- not the government -- should be able to choose where their children go to school. Gary Bauer was head of the Family Research Council, an organization aimed at reaffirming and promoting "the traditional family unit." Now he says returning Elián to his father in Cuba would be "scandalous." &#13;<br />
&#13;<br /></p><p>The reason that Elián has eclipsed traditional Republican positions on family values and immigration is because his case evokes atavistic Cold War sentiments from Republicans, according to James Gimpel, professor at the University of Maryland who studies immigration politics. While the American public has cast aside the fear of Cuba and prefers to return Elián to his father, Republicans are still swinging at communist hobgoblins. (A <i>Time</i>/<i>CNN</i> poll showed that 48 percent of Americans side with the Democrats, preferring that Elián be returned, while 35 percent think that he should stay in the U.S.) &#13;<br />
&#13;<br /></p><p>"Republicans don't see this as an issue of family law because of their icy stance towards Cuba," he said. "They're still the party of saber-rattlers." At least they're consistent on one thing.</p>
</div></div></div>Wed, 19 Dec 2001 19:14:02 +0000139222 at http://prospect.orgAlexander NguyenThe Immigrant Trap:http://prospect.org/article/immigrant-trap
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>In his address to the nation Thursday night, President Bush made several impassioned pleas for Americans not to blame Arabs or Muslims for the terrorist attacks. "I ask you to uphold the values of America and remember why so many have come here," he said. "No one should be singled out for unfair treatment or unkind words because of their ethnic background or religious faith." His appeals were more than called for at a time when Arab immigrants and their descendants have been facing harassment, threats, and even death at the hands of wrathful Americans.<br />
Bush's rhetoric defending immigrants is not new. In a July visit to Ellis Island -- the historical gateway for immigrants -- Bush argued, "New arrivals should be greeted not with suspicion and resentment, but with openness and courtesy." </p>
<p> But some Bush Administration decisions this week contradict his munificent language. <i>The New York Times</i> reported this week that U.S. Attorney General John Ashcroft's Justice Department drafted legislation that would allow the government to detain and deport legal immigrants suspected of terrorism without having to undergo the inconvenience of presenting any evidence first or bothering with subsequent appeals. In addition, the Bush administration sent Congress legislation that would expand the government's ability to conduct surveillance of people suspected of being terrorists. </p>
<p> Finally, the Bush Administration announced that, in response to the fatal bombings at the World Trade Center, that it would allow the Justice Department to detain legal immigrants indefinitely during a national emergency. Ordinarily, the Justice Department would need to either charge or release a suspect within 24 hours of arrest. The White House, however, dispensed with this rule and allowed for detention for "an additional reasonable period of time" -- in other words, as long as authorities see fit. </p>
<p> Senator Patrick Leahy, the Democratic chairman of the Judiciary Committee, was quoted as saying if the government was allowed to, "take some Arab-looking person and hold him for as long as they want while they investigate," it would be a rights violation analogous to the internment of the Japanese-Americans during World War II.</p>
<p> Some Republicans have rightly questioned the wisdom of the surveillance proposal. Arch-conservative Representative Bob Barr of Georgia, expressed "strong reservations" about Bush's proposal. In a letter to Ashcroft, he wrote, "Before we begin dismantling constitutionally protected safeguards and diminishing fundamental rights to privacy, we should first examine why last week's attacks occurred." Barr's criticism suggests that the remedy Ashcroft and Bush are proposing is badly tailored to the problem it sets out to solve.</p>
<p> First, if these proposals are enacted, discrimination based upon national origin is almost certain. Despite the superficial neutrality of these policies, the timing of these proposals at the heels of the tragic World Trade Center attacks will primarily only affect immigrants of Arab descent. The racial profiling that would occur as a result of this policy is, as Chris Mooney <a href="http://www.prospect.org/webfeatures/2001/09/mooney-c-2.html">argued</a> in these pages, unacceptable. </p>
<p> Second, the provisions that would allow Ashcroft to waive the time limit may be unconstitutional. In <i>Zadvydas v. Davis</i>, the Supreme Court this summer held that indefinite detention of clearly deportable legal immigrants is a constitutional violation. "Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent," the court wrote. Without a requirement to charge or discharge a suspect after 24 hours, and substituting it with a vague "reasonable time" period, there is no accountability or pressure on behalf of the Department of Justice to investigate before arrests --the proposals will thus create an incentive to favor a catch-and-hold strategy. Because the 24-hour requirement can be waived "in the event of emergency or other extraordinary circumstance," this period can extend indefinitely, subject to Rorschach interpretations of what is an "extraordinary circumstance." (Though few would argue that the recent attacks do not constitute an extraordinary circumstance.)</p>
<p> Many have compared the horrific attacks on the World Trade Center and the Pentagon to the one on Pearl Harbor. It is heartening that unlike after Pearl Harbor, the president is now giving speeches condemning discrimination. Due process rights are established particularly for extraordinary -- even heartbreaking -- circumstances and must be applied without bias. President Bush must uphold the values of America by living by his own rhetoric.</p>
</div></div></div>Wed, 19 Dec 2001 19:10:18 +0000139558 at http://prospect.orgAlexander NguyenBill Clinton's Death Penalty Waffle --http://prospect.org/article/bill-clintons-death-penalty-waffle
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Bill Clinton recently spared Juan Raul Garza's life -- at least for a little while. On August 5, Garza -- a drug trafficker convicted of ordering the murder of three people -- would have become the first person executed by the federal government in almost 40 years. Though few question whether Garza is guilty, Clinton wants to give him time to request clemency under new guidelines, which are still being drafted. </p>
<p>Some Republicans have suggested that Clinton did this to make it easier for Al Gore to attack George W. Bush as the murderingest politician (137 served, and counting). But the real story here may be how Bill Clinton has morphed from an opponent of the death penalty to an avid supporter to a near agnostic -- and the lessons it may offer for execution's opponents. </p>
<p><b>Moral Opponent</b></p>
<p>In his early days, Clinton opposed the death penalty. And while he and his wife Hillary Rodham Clinton were both teaching at the University of Arkansas Law School, she wrote an appellate brief that helped free a mentally retarded man from execution. "Clinton was against the death penalty," says Arkansas attorney Jeff Rosenzweig, who, like Clinton, grew up in Hot Springs, Arkansas. "He told me so." </p>
<p>As a young governor, Clinton was reluctant to facilitate the executions permitted by his state. Prosecutors often had to pressure Clinton to schedule inmates' executions, according to the <i>Legal Times</i>. By not doing so, he was postponing their deaths indefinitely. </p>
<p>Clinton eventually signed a policy that effectively set the execution dates for him. Nevertheless, he was no Robespierre: During his first term as governor, he freed 70 people from jail, 38 of whom were convicted of first-degree murder. But when one of those murdered again a few months after his release, Clinton suffered a humiliating defeat for re-election to a Republican who accused him of being soft on crime. When Clinton ran again, he publicly apologized for freeing the convicts and vowed not to do so again if re-elected. Since 1983 he has granted only seven requests. </p>
<p><b>Political Supporter</b></p>
<p>By his second term as governor, Clinton had begun morphing into a death penalty supporter. In 1988 he expressed his support quite mildly, saying that while "many fine people" believed executions to be immoral, "that's just not my view of it." He also told <i>The Arkansas Democrat-Gazette</i>, "I can't say it's an inappropriate punishment for people who are multiple murderers and who are deliberately doing it and who are adjudged to be sane and know what they're doing when they're doing it." </p>
<p>During this time, Clinton told the media that capital punishment would probably deter "clearly premeditated crimes" but then told a high school class that there was no compelling evidence that it did so. (Incidentally, this ambivalence was not unique to Clinton -- one of his predecessors, Governor Orval Faubus, actually organized fundraisers for inmates to appeal their death sentences even as he sent them to the electric chair.) </p>
<p>Gradually, Clinton became a more willing executioner. Days before an execution, a lawyer from the American Civil Liberties Union approached Clinton at a tree-planting ceremony. Shaking Clinton's hand, the lawyer confronted him, saying, "You won't remember the tree, but you'll remember the people you executed." Clinton parried, "I remember the people that they killed, too." </p>
<p>On the national stage, something happened that would cement Clinton's support for the death penalty for years to come. Asked during the 1988 debates if Michael Dukakis would support the death penalty if his wife Kitty were raped and murdered, Dukakis stared into the camera, squinted into the lights above, and then said, "I think there are better and more effective ways to deal with violent crime." The answer ruined Dukakis. Bush relentlessly charged Dukakis with being soft on crime, and his loss changed the landscape of what Democrats could say about the death penalty. </p>
<p>Clinton had learned his lesson. By 1992 the presidential candidate was insisting that Democrats "should no longer feel guilty about protecting the innocent." To make his point, he flew home to Arkansas mid-campaign to watch the execution of Rickey Ray Rector, a 40-year-old black man convicted of killing a black police officer. After shooting the cop, Rector shot himself in the head and damaged his brain. </p>
<p>Though courts decided Rector was mentally competent to be put to death by lethal injection, evidence suggests otherwise. Rector's prison guards called him "the Chickman" because he thought the guards were throwing alligators and chickens into his cell. He would grip the bars and jump up and down like an ape. On the night of his execution, Rector saved the slice of pecan pie to be eaten before bedtime, not realizing his death would come first. He also told his attorney that he would like to vote for Clinton in the fall. </p>
<p>Also executed during the campaign was Steven Douglas Hill, who was convicted of shooting a state police investigator after he and an accomplice escaped from a state prison. Hill confessed to the crime, but his partner Michael Cox has insisted for years that it was he, not Hill, who pulled the trigger. In all, Arkansas executed four people on Clinton's watch.</p>
<p>The executions made Clinton's wish come true. Never again would anyone seriously accuse him of being soft on crime. Never again would anyone challenge his status as a New Democrat. </p>
<p>As president, Clinton continued to endorse the death penalty. In 1994 he pushed a crime bill through Congress that allows prosecutors to seek the federal death penalty in 60 more crimes than they could previously. Later, in his campaign against Bob Dole, Clinton ran a TV ad in which he recommended that in addition to putting more cops on the streets, "expand the death penalty. That's how we'll protect America." </p>
<p>In 1996, prompted by the Oklahoma City bombing, Clinton supported antiterrorism legislation that included an (ultimately unsuccessful) provision that would have curtailed the writ of habeas corpus -- the power of federal courts to second-guess state courts on whether or not a fair trial had been given. The law would have allowed inmates only one federal death row appeal filed within one year of exhausting all the possible state appeals. </p>
<p><b>Empirical Agnostic</b></p>
<p>Quite recently, however, Clinton has changed his position. Expressing some concern that the death penalty was being distributed unequally across racial and geographic lines, his White House has asked the Department of Justice to do a statistical survey. And Clinton promised to delay Garza's execution -- a move that contrasts sharply with the bloodthirsty persona he adopted almost two decades ago. </p>
<p>Clinton still officially supports the death penalty and so far has ignored the calls for a national moratorium on federal executions. In fact, when Senator Russell Feingold sent Clinton a letter asking him to suspend federal executions and review the death penalty, the letter went unanswered. Nevertheless, it is important to ask why -- in the heat of his vice president's campaign -- this poll-driven president would risk backing off the very position that secured his reputation as an electable moderate.</p>
<p><b>Political Sea Change</b></p>
<p>There are several factors giving Clinton wiggle room -- and they center on the fact that recent attacks on the death penalty have been formulated not on principle, but on process. </p>
<p>The first empirical argument is the racial disparity. Of the 21 people on federal death row, 17 are black, Asian, or Hispanic. The second, and even more promising, argument is that the specter of putting an innocent person to death is too large. Columbia University released a study that showed that two-thirds of death penalty cases appealed between 1973 and 1995 were so flawed they had to be overturned. In Illinois -- where Republican Governor George Ryan recently suspended the death penalty to investigate the fairness of the process -- 13 death row inmates have been freed and 12 executed since 1977. In Ryan's state, college students were able to dig up evidence exonerating inmates on death row. Since 1993 the availability of DNA testing has also cast much doubt on the certainty of guilt in convictions. </p>
<p>Third -- rather than arguing against the death penalty as a whole -- opponents have highlighted particular cases. "I don't think that much ground will be gained by sort of generically attacking the institution of the death penalty," Democratic strategist Scott Segal told <i>The Washington Times</i>. "Democrats will gain ground by pointing out specific instances." </p>
<p>Finally, backing off the death penalty has become safer since crime levels dropped so precipitously over the past decade. With the decline in crime, the support for the death penalty has fallen too. Polls place current support at 66 percent, down from 80 percent in 1994. Support falls to only 52 percent if an alternative punishment such as life imprisonment is offered as an option, according to Gallup polls. </p>
<p>But there's a better measure than polls: President Clinton's chameleon-like approach may give observers the best reflection of the political environment of all. And if Clinton is softening his death penalty stance, opponents can be sure that now is the moment to redouble efforts to chip away at execution's foundation -- for they may be able to topple the whole institution.</p>
</div></div></div>Wed, 19 Dec 2001 19:07:07 +0000139251 at http://prospect.orgAlexander NguyenImpeachment at Harvardhttp://prospect.org/article/impeachment-harvard
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><font class="nonprinting articlebody"></font></p>
<p><font size="+2" color="darkred"><b> B</b></font>enbrook Lake near Fort Worth, Texas, is the kind of place where fishermen catch sandbass and lovers wake up to a tequila sunrise. But on a December day in 1983, violence came to Benbrook Lake in the person of Ronnie Dale Gaspard. He was affiliated with the Bandidos, a motorcycle gang whose members snorted methamphetamine off the tips of knife blades, and he was going there to settle a score. Which is why he was in a car and not on his bike. Which is also why he had been drinking a large amount of whiskey.</p>
<p>Gaspard was giving a ride to 23-year-old Denise Sanders. As they approached the lake, Gaspard stopped the car. Sanders stepped outside, clueless. A year or so prior, she had testified against the Bandidos, sending some of them to jail for drug trafficking. She shouldn't have done that, Gaspard thought, before he got out of his car and shot her in the head.</p>
<p></p><p>It wasn't long before police seized Gaspard and charged him with the murder. And then something happened that is the stuff of bad television drama. The police read Gaspard his Miranda rights. "You have the right to remain silent... . You have the right to an attorney... . " Gaspard asked for a lawyer but then confessed before the lawyer arrived. When these events later came to light in court, a judge suppressed Gaspard's confession, noting that it had been taken improperly after the accused had requested an attorney--a violation of Miranda procedures. Gaspard walked out free, smirking. "Nothing ever bothered me as much as seeing that guy walk out of the courthouse," the assistant district attorney was quoted as saying. "But there's nothing I can do. He is off and free."</p>
<p>Cases like this are rare, but they pack an emotional punch. Conservatives have argued for years that Miranda rights are an example of the way the criminal justice system bends too far to protect the guilty. The requirement to give the Miranda warning at just the right time, in just the right way, conservatives argue, has restricted law enforcement officers, has discouraged confessions, and has sometimes freed guilty criminals based on "technicalities."</p>
<p>"Miranda stands out as the single most damaging blow inflicted on law enforcement's ability to fight crime in roughly the last half-century," according to Paul Cassell, a law professor at the University of Utah who has emerged as the leading opponent of the Miranda doctrine. In a case last year before the conservative Fourth Circuit Court of Appeals, Cassell argued that if a confession can be shown to have been voluntarily given, it shouldn't matter whether there was a Miranda violation. Ruling in <i>Dickerson v. United States</i>, the court agreed. The justices decided that Miranda merely helps protect the constitutional right to avoid self-incrimination, but that there is no constitutional right to be informed in a strictly prescribed way of the right to remain silent and to have an attorney present. The U.S. Supreme Court agreed to review the case and is expected to hear arguments in April. At stake, criminal justice observers say, is a method of handling the rights of the accused that has become widely accepted in the law enforcement community, though not always followed to the letter since the Supreme Court made its original Miranda ruling more than three decades ago. </p>
<p></p><p><font color="darkred"><b>Ernesto Miranda's Confession</b></font></p>
<p></p><p>In its 1966 <i>Miranda v. Arizona</i> decision, the Supreme Court examined Ernesto Miranda's confession to kidnapping and sexually assaulting a mentally retarded woman. It turned out that police had failed to verbally inform him of his right not to talk and to have an attorney present at questioning. Therefore, Miranda's confession was inadmissible evidence. Unless police could back up suspects' statements with a signed form showing that the suspect had "voluntarily, knowingly, and intelligently" waived his constitutional right not to incriminate himself, the Court reasoned, such statements would not be allowable. </p>
<p></p><p>The Miranda ruling--along with other landmark Warren Court decisions, such as <i>Mapp v. Ohio</i> (forbidding admission of illegally obtained evidence) and <i>Gideon v. Wainwright</i> (providing attorneys for indigent criminal defendants)--changed the rules of the game in significant ways. The decisions ensured a fairer balance between individual rights and the state's interest in criminal prosecution. For the most part, supporters of those decisions say, the new rules stopped the infamous "third degree" by police during interrogations--physical coercion in the form of beating suspects with a rubber hose, for example, or plunging a suspect's head into a toilet. Occasional cases of brutal police interrogations still make the news, but police investigations on the whole are more professional and physical abuse has declined, longtime observers say.</p>
<p>According to conservatives, though, there have been unintended consequences, such as giving people like Ronnie Gaspard an undeserved break. Cassell has argued that as many as 28,000 violent criminals may be let off the hook each year because of the Miranda rules--an astounding claim.</p>
<p></p><p>Could Miranda have such a sweeping effect? Critics dispute Cassell's findings, noting that he derives them from the "crime clearance rate"--the rate at which police solve crimes. Cassell calculated that early in the 1960s police solved about 55 to 60 percent of criminal cases. By the end of the decade, the rate had fallen to 45 percent. He attributes that change entirely to Miranda. "But that's junk science of the silliest sort," says Stephen Schulhofer, a law professor at the University of Chicago, who believes that police solved crimes at a lower rate because crime soared during the 1960s while funding for police departments nationwide stagnated. Tracking "clearance capacity"--the number of police officers assigned per 100 violent crimes reported--Schulhofer reported that in 1960, 115 officers were assigned per 100 felonies, but only 51 were in 1968. "I don't think there's any mystery," says Schulhofer, about why the crime clearance rate dropped. In the 1990s, it should be noted, violent crimes fell to the lowest levels since 1973, when the Department of Justice first started recording the statistics. That doesn't speak to how many people are let off on "technicalities," but it casts some doubt on the claim that Miranda has significantly undermined law enforcement.</p>
<p>In fact, the law enforcement community does not uniformly view Miranda procedures as an impediment. Many police authorities say the Miranda rules are a useful tool in professional police work because they force police and prosecutors to gather scientific and forensic evidence to build a solid case. And studies suggest there has not been a decline in the rate at which the accused make confessions; it continues to hover at roughly 64 percent, which is what it was in the pre-Miranda era.</p>
<p>Having a prosecution blocked--as Ronnie Gaspard's was--because of a Miranda violation is so unusual that many people with long careers in law enforcement have never seen it happen. "How many cases were thrown out because of Miranda?" says Sergeant Norberto Huertas, a 22-year veteran of the Hartford Police Department in Connecticut. "None that I can think of." "How many times have I been able to suppress a confession because of Miranda?" says Page Kelley, a Cambridge, Massachusetts, public defender in her 14th year. Kelley rolls her eyes. "None." According to a 1987 Chicago survey, suppression motions succeeded in less than 1 percent of criminal cases--about four cases out of 10,000.</p>
<p>One of the reasons police and prosecutors have learned to live with Miranda is that the rules have not radically changed law enforcement. "The majority of suspects waive their rights," says Lieutenant James Blanchette of the Hartford Police Department. "Surprising, isn't it?" The usual procedure works like this: A suspect is apprehended, informed of his rights, and then invited to talk things over. If he is willing to talk, he is given a waiver form. Signing on the line at the bottom, he attests that he is aware of his rights and is speaking voluntarily. Various studies, including one by Cassell himself, have found that suspects waive their rights at an overwhelming rate--80 to 90 percent of the time.</p>
<p>So while the Supreme Court looks at the question this spring of whether police departments should be held to strict Miranda procedures, there are other equally important and crucially related questions: Are Miranda rules working well enough? Are they serving their original goal of providing fairness to suspects who may be ignorant of their rights, primarily the indigent or the illiterate? Is the brick wall that conservatives see blocking police work in actual practice a minor speed bump?</p>
<p></p><p><font color="darkred"><b>Going through the Motions</b></font></p>
<p></p><p>At the Middlesex Superior Court in Cambridge, Massachusetts, Frank Ward seems to know everybody. He high-fives the bailiff. He asks prosecutors if they saw <i>The Practice</i> on TV last night. He discusses his current cases, which would normally be a breach of attorney-client privilege, if Ward were a lawyer. But he is a client, having been arrested for petty offenses ranging from larceny to drug use. By his own estimate, police have read him his Miranda rights more than 30 times, and by his own appraisal, the warnings don't do much. "Miranda is a big joke," he says. "It doesn't protect you from anything. It doesn't help or hurt you."</p>
<p></p><p>Ward says that officers usually usher him, handcuffed, into the booking room at the police station where another officer will read him his rights through a plexiglass window. "When they read it, you just nod and acknowledge it," he says. "They'll say, 'Do you understand?' And then you say, 'Yeah.' And then you sign the form."</p>
<p>Suspects waive their Miranda rights at a high rate because cops for the most part have turned them into a bureaucratic formality, according to George Thomas, a law professor at Rutgers University. "Police have learned to be very clever about giving warnings. They make them seem routine. They'll say, 'What's your name, what's your address, how old are you, and by the way, you have these rights.'"</p>
<p>Police usually inform suspects of the rights by reading from a wallet-sized card they carry. The training manual of the Boston Police Department tells its officers that Miranda rights "can be administered in a variety of ways." Police can give a detailed explanation if they are so inclined. "The better practice," according to the manual, "is recitation by the officer, who reads the warnings from his card." Simply reading the rights abides by the letter of Miranda, but not its spirit, since police officers should also be prepared to explain the rights to suspects, according to Dennis Roberts, a criminal-defense lawyer in Oakland, California. "I make cops do it in court," he says. "They schlepp it out, it's usually dog-eared, and then they read it in a monotone; they have no idea what they're saying. It's a talismanic incantation of the words."</p>
<p></p><p><font size="+2" color="darkred"><b> A</b></font>ccording to Richard Leo, a professor at the University of California, Irvine, who studies criminal interrogations, police have developed sophisticated and deceptive tactics that allow them to bait suspects into waiving their Miranda rights. "Criminal Interrogation and Confessions," the leading training manual for police interrogations, recommends, for example, that interrogators stand in front of the suspect while holding a thick folder as a prop. While talking, the interrogator "should finger through the case folder to create the impression that it contains material of an incriminating nature about the suspect." In this manner, police not only downplay the significance of Miranda rights; they have developed subtle tactics that make a waiver seem advantageous to a suspect.</p>
<p>Techniques such as the following are fairly typical. In a 1996 case in Sacramento, California, police took Kentrick McCoy into custody, photographed him, and then started to interview him.</p>
<blockquote><p>Interrogator: I also need to know the real truth because I'm not sure she's telling us the whole story.</p>
<p>Suspect: What, what is she trying to say?</p>
<p>Interrogator: Well, she's alleging that you pointed the gun at her.</p>
<p>Suspect: Uh-huh [negative]. Nah-uh.</p>
<p>Interrogator: Alright, before we, before we do that, I, like I said I know there's more to the story than she's telling us. But-- Suspect: I don't even know her, you know what I'm saying--</p>
<p>Interrogator: Whoa, whoa, whoa. I can't take your statement until we get through that Miranda issue.</p>
<p>Suspect: Oh.</p>
<p>Interrogator: You can't tell me anything until we get through that.</p>
</blockquote>
<p>"There's a lot of ways to get around Miranda," a homicide detective told The Washington Post in 1998. "Most guys know how to get somebody to waive their rights."</p>
<p>But even if police read the rights quickly or in a perfunctory manner, prosecutors and police officers have said--and the courts have generally agreed--that there is nothing puzzling about the right to remain silent. Except for rare cases (for example, 11-year-old defendant Nathaniel Abraham, asked by Ed Bradley on <i>60 Minutes</i> if he understood his Miranda rights, said, "No, no. I didn't understand. He had some white piece of paper and he's reading my rights"), the presumption--one supported by the cultural ubiquity of Miranda warnings on cop shows on television--remains that suspects already know their rights and that reading them is generally enough. "Ninety-one percent of all 13-year-olds can already recite Miranda," said Richard Moran, a professor of sociology at Mount Holyoke College, in a radio interview last June.</p>
<p>"Think about it," says Roberts, the criminal-defense attorney. "You're the DA, and someone says he didn't understand his rights. All you have to do is say, 'You said the confession was involuntarily given. Well, you know what a lawyer is, don't you? You understand what rights are, don't you? You know what that means; you went to third grade. Yeah, and you saw <i>Perry Mason</i> or <i>Ally McBeal</i>, right?' It's not that hard to establish."</p>
<p>So, if suspects understand their right to silence, why do so many go on to sign waiver forms and make confessions without the advice of a lawyer?</p>
<p></p><p><font color="darkred"><b>Understanding Your Rights</b></font></p>
<p></p><p>In its original Miranda ruling, the Supreme Court argued that "in-custody interrogation ... contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." By telling suspects about their constitutional rights, the Court hoped to neutralize the psychological home-field advantage of the police over the lone suspect inside the interrogation room. This was to ensure that statements would truly be voluntary and, by extension, not violate the Fifth Amendment. </p>
<p>Yet the tactics police departments have developed are so effective that police have even been able to extract false confessions from innocent suspects--a baffling phenomenon, but evidence that interrogations have continued to be psychologically compelling. This may be because Miranda never really addressed the most important of the "inherently compelling pressures" of police interrogations: the belief that if suspects keep quiet, they will look guilty. The root of this problem may be in the actual wording of Miranda itself. The warnings indicate the consequences of talking to the police ("Anything you say may be used against you in a court of law"). But they do not indicate the consequences of refusing to answer questions--which, in theory, should be nothing other than the continued presumption of innocence. It may be ignorance of this fact that causes suspects to waive their rights at such a high rate. </p>
<p>"If you have the right to remain silent, that means that there will be no adverse consequences if you don't talk," says Carol Steiker, a criminal-law professor at Harvard Law School. "But cops don't say that if you invoke Miranda, nothing bad will happen to you--but that's what it means to have a right." In fact, a suspect's refusal to speak after being read his rights cannot even be brought up at a later trial, says Anson Kaye, press secretary at the Middlesex district attorney's office in Massachusetts. In this sense, the problem with Miranda is not that suspects do not understand what it means to remain silent. It is that they do not understand the concept of <i>rights</i>. "[If you don't talk], they'll just make stuff up," says one criminal defendant interviewed for this story, who asked to remain anonymous. "They'll lie on your report, so it's on your behalf to just talk to them. Then they'll say you cooperated."</p>
<p>The original Miranda decision stated that warnings were needed "to make [the suspect] aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege." But how can a waiver be intelligently made if Miranda does not fully inform the suspects of the consequences of remaining silent and leaves instead the impression that silence is equivalent to guilt?</p>
<p>"If I were to tinker with Miranda," says Geoffrey Packard, a public defender in Cambridge, Massachusetts, "I would say, anything you say can be used against you. However, if you choose not to, that fact will not be used against you."</p>
<p></p><p><font size="+2" color="darkred"><b> M</b></font>iranda rights were intended to promote fair and equitable treatment for suspects who are not necessarily aware of their rights or are reluctant to exercise them. "Poor people are not going to say, 'Leave me alone, or I'll call my lawyer,'" says Packard. But they have imperfectly fulfilled their mandate by allowing police to downplay the significance of the rights they recite, or to make it seem in the suspect's interest to waive them. "I'm talking about the Mirandas of the world, the Hispanics, the blacks, the people in the ghettos and the barrios who don't know about their rights," said Harvard Law Professor Alan Dershowitz several years ago in a PBS interview. "We're not talking there about coercion necessarily. We're talking about fooling somebody into giving up a right that the Constitution gives them."</p>
<p>Whether it is a matter of "fooling" suspects or not, the Supreme Court has in the past recognized that there is a higher standard required by police than "going through the motions." Ernesto Miranda's own signed confession, after all, contained a typewritten paragraph saying that his statement had been made voluntarily and that he had full knowledge of his constitutional rights. But the Supreme Court ruled that because his rights hadn't been verbally explained to him, he hadn't been truly informed: "The mere fact that he signed a statement which contained a typed-in clause stating that he had 'full knowledge' of his 'legal rights' does not approach the knowing and intelligent waiver required to relinquish constitutional rights." When the Supreme Court reconsiders the case this spring, it might well ask if the Miranda warnings themselves, as they are used in actual day-to-day practice, have succeeded in giving suspects the full knowledge of the rights they are so often asked to sign away. ¤</p>
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<hr size="1" /></center></div></div></div>Wed, 19 Dec 2001 19:04:41 +0000142320 at http://prospect.orgAlexander NguyenBeer and Debateshttp://prospect.org/article/beer-and-debates
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>"Ladies and gentlemen, this year, this Bud's not for you," the American Reform Party (ARP), a Reform Party splinter group, announced in January, telling members to stop drinking Anheuser-Busch beers, including Budweiser and Michelob.</p>
<p></p><p>Why boycott beer? After all, Donald Trump, the famously teetotaling tycoon who briefly contemplated angling for the nomination, has withdrawn. And this was, until recently, the party of regular guy Jesse Ventura. Shouldn't beer be, like, part of the platform?</p>
<p>It's not that the Reform Party has anything against beer. What it objects to is Anheuser-Busch's corporate sponsorship of the Commission on Presidential Debates (CPD).</p>
<p>Recently, the debate commission announced that candidates had to command at least 15 percent in popular support to be included in the three presidential debates to air nationally later this year. This threshold--three times higher than what is required for national party recognition by the Federal Election Commission--will make it "virtually impossible" for any Reform Party nominee or other independents to qualify for the debates, according to Doug Friedline of the Reform Party.</p>
<p>The commission argues that the 15 percent threshold ensures that only serious presidential contenders will participate. The presidential debates are "not a time to introduce a candidate or jump start a campaign," said Janet Brown, executive director of the CPD. Since up to 100 candidates (at least 90 of whom you've likely never heard of) run in the typical presidential race, expansive inclusiveness would simply make the debates too unwieldy. "That's a red herring," said Jack Gargan, the now deposed chairman of the Reform Party, because using the CPD's two other prerequisites--constitutional eligibility and access to enough state ballots to theoretically secure 270 votes in the Electoral College to win the presidency--would already winnow the field to six or seven candidates only. </p>
<p>Critics say that, by relying on the 15 percent popular approval threshold to determine viability of candidates, the CPD is overstepping its purpose: whether or not a candidate is electable is a judgment not for the commission to make before the debates, but for voters to make after. </p>
<p>If the 15 percent bar had been applied at the state level, Ventura would have lost in Minnesota. Ventura, who entered the debates at 10 percent in the polls, was able to emerge with 37 percent of the votes after participating, and doing well, in the televised debates. Similarly, if the 15 percent requirement had existed in 1992, Ross Perot would have been excluded from the debates (he was running at only 10 percent before the first debate was held); he would therefore not have been able to call attention to NAFTA, the national debt, or other issues of interest to the electorate. Indeed, there's evidence that the inclusion of a third candidate made the debates more interesting: Viewership for the 1992 <i>ménage à trois</i> with Perot topped 90 million, but dropped to 41 million in 1996 when Perot was barred. "[This] meant that the two pro-NAFTA, pro-GATT, pro-corporate, soft-money candidates were left to debate in peace," <i>The Nation</i> editorialized.</p>
<p>Several third parties have suggested an alternative to the 15 percent rule: that any nationally recognized party with enough popular support to qual-ify for matching funds be allowed to enter its nominee into the debate. So far, the CPD has refused, fueling suspicions that the commission really masks a collusion between the Republicans and Democrats to "corner the market forever on the presidency," as Pat Buchanan put it.</p>
<p>The notion that the "nonpartisan" commission is really bipartisan isn't entirely groundless: The two parties collaborated to wrest control of the debates from the League of Women Voters in the mid-1980s, and the CPD's two co-chairs are the former heads of the Republican and Democratic national committees, respectively. A 1986 blueprint of the commission explicitly noted, "The question of third-party candidates should not undermine the goal of institutionalizing debates between the Democratic and Republican party candidates." </p>
<p> "The debates are driven by the corporate mentality, which says that the only ones who count are the big ones," said Reform Party press secretary Dan Torgersen. Corporate sponsors of the CPD have included Philip Morris, AT&amp;T, IBM, and Sprint, who in return for their contributions receive ringside tickets to the debates, written recognition in all promotional material, and access to receptions after the event. They simultaneously donate to both parties (Philip Morris donated more than $2.6 million in the 1996 election cycle), which Perot unsuccessfully called an "illegal campaign contribution" in a 1996 lawsuit. There is a nice mutual aid program here. Big corporations support major parties. The major parties, in turn, help the corporations. And the same corporations underwrite a debate process that makes it harder for outsider candidates and parties to crack the system.</p>
<p>Meanwhile, Torgersen is eager to enlist other third parties in the Anheuser-Busch beer boycott. Torgersen is not, it should be noted, asking other third parties to give up beer altogether. He himself is drinking a substitute beer called Uffda. Why Uffda? Because the company's president is from the proportional representation-practicing Norway, and because "Uffda" is the Norwegian equivalent to the Yiddish "oy-vey," an expression of frustration and exactly how Torgersen feels about the CPD.</p>
</div></div></div>Wed, 19 Dec 2001 19:04:09 +0000142327 at http://prospect.orgAlexander NguyenHigh-Tech Migrant Laborhttp://prospect.org/article/high-tech-migrant-labor
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Guest workers: They're not just picking vegetables anymore. A new class of "migrant workers" is taking shape in America's Silicon Valley and other technology centers. These immigrants are not sneaking over U.S. bordersthey arrive by jet from India, the Philippines, China, and Taiwan to take jobs in computer programming, software design, and information services. </p>
<p></p><p></p>
<p>And America's information technology industry wants more of them. "Forget the Huddled Masses," a recent BusinessWeek<i> </i>article proclaimed. "Send Nerds." Industry leaders claim they face a shortage of skilled high-tech professionalsa problem they fear will only get worse. A 1997 Bureau of Labor Statistics study projected there will be 1.3 million new info-tech jobs over the coming decade. </p>
<p></p><p></p>
<p>Lobbyists representing Microsoft, Texas Instruments, and Sun Micro systems have taken their case to Congress. The industries want to import more foreign workers through the H-1B visa program, which allows temporary guest workers into the country. This fall, California Representative David Dreier and Texas Senator Phil Gramm introduced bills to almost double the number of H-1B visas granted annually, raising the ceiling to 200,000. "If cutting-edge technology companies do not have access to growing numbers of highly skilled personnel," said Dreier, "it will threaten our nation's ability to maintain robust economic growth."</p>
<p></p><p></p>
<p></p><p></p>
<p>Nobody is sure just how severe or real the info-tech labor shortage is. A report by the Wash ing ton, D.C.-based Com puting Research Association in May concluded, "We cannot state conclusively that there is a shortage or quantify how large it might be." </p>
<p></p><p></p>
<p>Meanwhile, abundant anecdotal evidence indicates that some American technology workers, especially older ones, have a hard time finding steady work in their fields. William Spence, one of several workers contacted for this story, told of getting cut from his Stanford University job when a government grant expired. A 49-year-old research scientist, Spence entered the Silicon Valley job market thinking that his signal processing and programming experience would transfer easily into the cell-phone industry. But after putting out more than 500 resumes, he got only two interviews, and no offers. "And I have another 15 years to work," said Spence. Gene Nelson, 47, found it just as difficult in Dallas. Nelson worked on cutting-edge pin-based computing, which is used in "Palm Pilot" technology. Nelson says high-tech firms have given him the cold shoulder even though he has enrolled in retraining programs to keep his skills up to date. For a while, he answered phones for Microsoft from inside a six-by-six-foot cubicle. But the job didn't last. "It's good you're calling me on your nickel," he said. "Because right now, I'm out of a job."</p>
<p></p><p></p>
<p>The H-1B program depresses industry's incentive to retrain and hire workers like Nelson. America's technology sector understands that generally tight labor markets make it difficult to keep labor costs down, and the industry likes to be choosy. Increasing the supply of foreign workers could be just the ticket. And the industry has powerful friends in Congress. </p>
<p></p><p></p>
<p></p><p></p>
<p><font color="darkred"><b>Republicans to the rescue</b></font></p>
<p></p><p></p>
<p>A consensus in favor of the high-tech guest-worker program has emerged among Republicans in Congressa noteworthy development in light of past clashes in the GOP over immigration. Traditionally the party divides between closed-border restrictionists, who fear that too much immigration will drive up welfare spending and overpopulate the country, and open-border libertarians, who prefer perfect labor mobility across nations. </p>
<p></p><p></p>
<p>Yet last year, Congress increased the cap on H-1B guest workers from 65,000 per year to 115,000 with overwhelming Republican support. In the final Senate vote, only one Republican, Tim Hutch inson from Arkansas, opposed the bill (with Alfonse D'Amato from New York and Lauch Faircloth from North Carolina sitting out). Even Texas Republican Lamar Smith, an anti-immigration hard-liner, voted for the House version of the bill. "There used to be a lot of bad blood," says James Gimpel, an associate professor at the University of Maryland who has studied the politics of immigration reform. But in light of the guest-worker vote, Gimpel sees GOP tensions easing. </p>
<p></p><p></p>
<p>Why the easy support? The consensus hinges on calling H-1B workers "tem porary." This gives Congress the oppor tunity to take a pro-business stand that istechnicallynot a vote for increased immigration. Speaking in San Francisco this summer, Republican presidential candidate John McCain waxed enthusiastic about importing foreign workers. "I say that we should eliminate these artificial [H-1B] limits altogether," McCain said. Texas Governor George W. Bush has also supported raising the limit on H-1B visas. </p>
<p></p><p></p>
<p>In reality, the distinction between temporary workers and immigrants is largely semantic: Many foreign temps end up staying in the country permanently. "From working with my clients, [I'd say] the vast majority of H-1Bs want to stay," says Stephen Yale-Loehr, an immigration lawyer at Cornell Law School. "Is it 60 percent? Ninety percent? I don't know, but I would say it's the vast majority." </p>
<p></p><p></p>
<p>"There is nothing more permanent than a temporary worker," concurs Philip Martin, a professor of agricultural and resource economics at the University of California, Davis.<b> </b>The Institute for the Study of International Migration at Georgetown University estimates that nearly 40 percent of those who hold temporary guest-worker visas end up adjusting their status to permanent resident.</p>
<p></p><p></p>
<p>Critics say guest-worker programs amount to a back-door immigration policy. "They want to promote the influx of people from overseas but deny them the respect that a republic ought to accord to them," said Mark Krikorian, director of the Center for Immigration Studies, on National Public Radio in 1998. It's as if a method has been found to separate human capital from the humans who provide it. The labor of guest workers is imported, but their potential citizenship is not acknowledged as part of the deal. </p>
<p></p><p></p>
<p></p><p></p>
<p><font color="darkred"><b>Over a barrel </b></font></p>
<p></p><p></p>
<p>That guest-worker policy rests on the premise that labor can be separated from the laborer is reflected in the very design of the program. While legal resident status is attached to the immigrant, the H-1B visa is attached to the job, expiring the moment the worker quits or is fired. Under Immigration and Naturalization Service (INS) rules, such an employee must leave the United States within a month or risk deportationunless a new job can quickly be lined up. In that case, a new application for H-1B status must be submitted. While such an application is pending, neither the worker nor the immediate family members (who are typically admitted on a separate nonworker visa) are authorized to work. </p>
<p></p><p></p>
<p>It's also harder for some temporary workers with H-1B visas to pick up and leave the country. In guest-worker programs for other industriesmainly agriculturethe visa is for a seasonal stay, usually lasting six weeks to six months. But high-tech workers with H-1B visas are allowed to work in the United States for as long as six years. Over that span, friendships are fostered, children are enrolled in school, homes are furnishedand the desire to put down roots can be strong. </p>
<p></p><p></p>
<p>The way it often plays out is that the temporary worker applies for a green cardpermission to be a permanent resident. In this case, losing a job and leaving the country can be a major setback; it jeopardizes the green card application, which in most cases requires an employer's sponsorship. "The application process takes about five years," says Douglas Kretzmann of Littleton, Colorado, who arrived on an H-1B visa and has since become a legal resident. </p>
<p></p><p></p>
<p>The employer's sponsorship often gives companies added leverage over the immigrant worker. "This was always a well-understood part of the unspoken contract. The company paid less than the going rate because they were sponsoring us," says Kretzmann, who was able to almost double his salary upon leaving his company. </p>
<p></p><p></p>
<p>Reports of underpaid workers are not uncommon. "Dear Career Adviser," wrote an anonymous software consultant to an advice column in Computerworld in April. "My employer is underpaying me, because my pay is much lower than the figure he quoted on my H-1B application. What should I do about this?" The reply: "If you report your employer, you could be fired. And without a job, your H-1B visa becomes null and void." </p>
<p></p><p></p>
<p>"They wouldn't pay one of my friends his salary," says a computer programmer in North Carolina, who asked not to be named. "But he was scared that if he contacted the authorities, he would be on the next plane home." About one-fifth of employers illegally underpay foreign temporary workers, according to a Department of Labor study.</p>
<p></p><p></p>
<p>Officials also get reports of companies applying for guest workers they don't immediately need. "They come here, and there's no work," says John Fraser, the Department of Labor's acting administrator of the wage and hour division. "The employer can just bench them, so the workers are sitting here without pay, sometimes for weeks and months. There was a case where people were benched for a year and were either not paid or paid $50 a week to buy groceries." Between 1992 and 1998, the Department of Labor fined 87 employers for a combined $2.3 million in back wages. </p>
<p></p><p></p>
<p>In applying to hire guest workers, employers are required to attest that they will pay the "prevailing wage" and that they have tried but failed to find domestic workers. But the applications tend to be rubber-stamped. "It's pretty much guar anteed approval, unless someone has not filled in a box or something," says Fraser. "We can't look behind the application; we can't ascertain fraud." Who is to say, for example, that foreign applicants really have the educational background or work history they claim? One study by the INS and State Department reviewed pending H-1B applications in Chennai, India, and could verify only 45 percent of the forms. The officials found 21 percent of the applicants' credentials were fabricated. </p>
<p></p><p></p>
<p></p><p></p>
<p><font color="darkred"><b>The need for workers </b></font></p>
<p></p><p></p>
<p>While demand for H-1B visas has soared (INS approved 115,000 this year with a waiting list of 42,000), recent layoffs at companies such as Hewlett-Packard, Intel, Motorola, and Lucent Technologies have cast doubt on industry claims of a labor shortage. Last year, a study by the employment firm Challenger, Grey and Christmas calculated that 21 major high-tech companies had laid off more than 120,000 workers over a period of six months. </p>
<p></p><p></p>
<p>Skeptics point to the low hiring rate by information technology firms and only modest increases in high-tech salaries. "The fact that employers can be so picky in their hiring demonstrates an oversupply of labor," says Norman Matloff, a professor at the University of California, Davis. Technology industry salaries have increased about four to five percent per year, according to The Washington Post<i>.</i> By contrast, Matloff says, in 1998 the average real salary of surveyors and dieticians increased by 20 percent and 17 percent respectively. </p>
<p></p><p></p>
<p>Some have argued that support for the H-1B program is driven by a quest for cheap labor. "What if the IT work force shortage is nothing more than a ploy by Ameri- can IT-based industries to . . . reduce labor costs?" a recent Chicago Sun-Times editorial mused. Indeed, about 80 percent of H-1B applications are for positions paying $50,000 or less and requiring only a bachelor's degree. The H-1B program "has become a major means of circumventing the costs of paying skilled American workers or the costs of training them," testified then-Secretary of Labor Robert Reich in 1995.</p>
<p></p><p></p>
<p>Yet evidence of spot labor shortages is available, too. Some recruiters have, after all, gone to great lengths to hire IT workers: A recent story in The Wall Street Journal featured recruiters traveling to India to find computer programmers. And in Dallas, the company Texas Instruments is currently offering new, fully loaded Ford Explorers to employees who recruit the most workers. "The car hasn't been given away yet," says Matt McKinney, program manager. "It's parked in front of the cafeteria, so it's getting a lot of attention." </p>
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<p>One possible explanation of the conflicting labor-market reports is that demand for workers does not necessarily prove a shortage. "If you said you needed electrical engineers who speak Mandarin and Swahili, then you could come up with a shortage too," says Terry Oldham, an electrical engineer in the Silicon Valley area who only recently found work. </p>
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<p>Attrition and flux can account for up to 60 percent of the demand, according to Michael Boyd, a manager at the research company International Data Corporation. In other words, if workers move from job to job or leave the IT labor market for other fields, companies will register vacancies and demand workers, even if on an aggregate level no such widespread shortage exists. "If everyone stopped changing jobs, the demand would drop dramatically," Boyd says. Thus, if industries could reduce turnover, they would be solving some of their problem. </p>
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<p>Just as important, the high demand could be the result of high-tech firms' tendency to recruit based on immediate skill levelrather than looking for talented workers who could be trained. "I was on the phone with a recruiter this morning," says Mark Mendlovitz, a computer professional from Santa Barbara, California. "He asked me some questions about skills, and he said, 'I want you to answer yes or no, and say yes only if you've been paid for this, not if you know it.'" In this way, getting a high-tech job is akin to applying for the first credit card when the prerequisite is a good credit history.</p>
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<p>Since innovation in the IT sector is so fast (the average shelf life for a product is nine to 18 months, and just three months for an Internet product, according to Thom Stohler, director of work-force policies at the American Electronics Association), a recruiting process that focuses solely on skills rather than talent locks workersespecially older onesout of the labor market prematurely. "A year ago, we were looking for COBOL people," says Andrew Jackson, president of an IT staffing firm in Dallas. "And now there are no requests for that at all. . . . A lot of them are looking for work."</p>
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<p>The logic of the H-1B programto see workers only in terms of their marketable skills and not as potential citizensis similar to the industry's overall approach: looking for skills instead of for talented people who can acquire them. It may well be cheaper for industries to tap into the global marketplace for labor, but is that a policy government should encourage? A perceived shortage of domestic workers invites industry and public policy to get serious about training and re-training. Easy access to imported temps frustrates that approach, whereas greater public and private investment in edu cation and vocational training would show commitment to the available American work force.</p>
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<p><font color="darkred"><b>Getting it backwards </b></font></p>
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<p>As an unacknowledged immigration program, the H-1B visa program betrays what the bipartisan U.S. Commission on Immigration Reform, headed by the late Barbara Jordan, sought: a combination of strict and credible standards of admissions and a lenient and generous immigrant<i> </i>policy that accepts new arrivals as full members of society or as citizens in training. </p>
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<p>The H-1B program does the opposite: It admits people haphazardly into the country, then fails to grant them full rights as potential citizens. The result is a vulnerable caste of workers laboring in the hope of getting green cards and serving as a base of cheaper labor to replace workers who companies don't want to pay to retrain.</p>
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<p>A short-term solution would be to admit high-tech workers as legal immigrants and, by extension, free agents in the labor market. Although currently up to 140,000 workers per year can be admitted under this category, only about 77,000 entered last year, mostly because sponsorship under this program takes too long (up to 48 months), costs too much (up to $15,000 in potential legal fees), and is too strict (requires extensive background checks). In a letter to President Clinton this October, Paul Kostek, president of the Institute of Electrical and Electronics Engineers, summed up: "Green cards, not guest workers. That is the solution, Mr. President." This approach would reduce the opportunities of labor brokers and employers to import guest workers; it would also require employers to prove they face a labor shortage before sponsoring foreign professionals. </p>
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<p>In the long run, reform depends on a more fundamental shift in recruitment mindsetone that looks for individuals who can acquire skills quickly and efficiently in a rapidly changing industry. This would require a renewed commitment to increased job training. It would mean seeing workers as long-term assets. "The new management mentality is that people aren't people," says Gene Nelson, the unemployed computer professional in Dallas. "They are just machines, and if you don't need them, you unplug them and wheel them out." And if you do need them, he might have added, you can find a way to import them at bargain cost. </p>
<!-- dhandler for print articles --></div></div></div>Wed, 19 Dec 2001 19:04:08 +0000141168 at http://prospect.orgAlexander NguyenOur Fordhttp://prospect.org/article/our-ford
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<p></p><p>Last September AT&amp;T approached the financially struggling First Christian Church in Alexandria, Virginia, with this bargain: In return for letting the company erect a 130-foot-tall cross doubling as a cellular phone tower, the congregation would receive $18,000 annually. Residents were split: Was the money--in the words of the Reverend Tim Mabbott, who supported the idea--a "blessing from God" or simply a Faustian kickback?</p>
<p></p><p>Cell phones have limited range--one to eight miles, typically--so calls must be placed near a tower. This is fine if a call is made from a nearby office, but not if it's from a cab moving out of range. In this latter case, another cell phone tower must pick up the signal the way a runner takes a baton from his team-mate. Cell phone towers are often hidden in pre-existing structures--trees, water towers, even church steeples-- but this time, lacking other options, the company wanted to build a stealth site from scratch.</p>
<p>In a fit of corporate diplomacy, AT&amp;T representatives held two community meetings to pitch their idea: a tall white cross, three feet wide, with an eight-foot-high cable box at its base. They swaggered into the church meeting. The cross seemed symbolically appropriate, a case study of win-win straight out of Negotiating 101. For the church, 18 grand meant a lot of Sunday break-fasts; for the company, the tower meant thousands of happy cell phonetoting lobbyists buzzing other lobby-ists in the high-tech corridor of northern Virginia.</p>
<p>But in the end, company representatives left with their tails between their legs. Though the congregation eventually voted for the proposal, "residents were highly offended by the merging of the corporate and the religious," said Alexa Graf, spokesperson for AT&amp;T, and the company backed out.</p>
<p>Meanwhile, AT&amp;T is still searching for a home for its tower: The First Baptist Church rejected it. A proposal is pending at the George Washington Masonic National Memorial but is unlikely to pass, according to Executive Secretary-Treasurer George Seghers: "I don't think we want it."</p>
<p>In Aldous Huxley's <i>Brave New World</i>, Our Ford--inventor of the first Model T--replaces Our Lord, and consumerism succeeds Christianity as the new religion: "All crosses had their tops cut and became T's." Looks like AT&amp;T's vision of this religious-commercial complex is, for the time being, on hold.</p>
<p></p><p align="right">--Alexander Nguyen<br /><br /></p>
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</div></div></div>Wed, 19 Dec 2001 19:04:08 +0000140741 at http://prospect.orgAlexander NguyenNo Fanfare for Learnfarehttp://prospect.org/article/no-fanfare-learnfare
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<p>This school year, Governor George Pataki of New York expanded Learnfare--a program making family-assistance grants contingent upon children's attendance at school--to include all elementary schools in the state. After three unexcused absences, students on welfare must seek counseling. After four unexcused absences, their families lose $60 in monthly assistance, which they can earn back with perfect attendance the following quarter. During the program's two-year pilot run, 329 families had their grants reduced, and only 16 families were able to recover their losses. Learnfare, according to Pataki, rests on the premise that "[a] good education is a key building block in any child's future and is absolutely necessary to break what for too many families has become a generational dependency on public assistance." And by targeting the very young in grades one through six, it hopes to "help them move out of the welfare culture," according to Jack Madden, spokesperson for the state's Office of Temporary and Disability Assistance. The rationale--a classic culture-of-poverty argument-- assumes that poor school attendance is due to poor values.&#13;</p>
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<p>But no evidence for such a claim exists. "Is lower school attendance by poor students because their families lack a belief in the importance of school or because various circumstances like asthma afflict them more than middle-class families?" said Katherine Newman, an anthropologist at Harvard University who has studied poor working-class families in New York. According to Newman's research, poor families emphasize schooling even more than others, especially because parents with little or no education struggle in the labor market and hence do not want their children to repeat the experience. Learnfare also suggests that children whose families are on welfare miss school at a higher rate than others, but is that true?&#13;</p>
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"We don't have statistics on that," said Madden. Officials in Virginia and Florida also did not have data on attendance. However, an assessment of Learnfare in Wisconsin in 1995, where the program was pioneered, showed that the attendance rate for those subject to public-assistance reductions was 70.7 percent; it was 70.8 percent for those not affected by Learnfare. The unexcused-absence rate was similar: 23.1 percent for those subject to reductions and 22.9 percent for students unaffected by Learnfare. In Iowa, a state Department of Education study was also unable to show a correlation between school attendance and income group.&#13;</p>
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Not only does Learnfare fail to establish a need for itself; there's little evidence that the program even works. The study in Wisconsin found that, at a cost of $11.8 million per year, the program did not succeed in raising attendance. "The thing to report is it isn't working. It has no positive impact," an official told <i>The Milwaukee Journal Sentinel</i> in 1996. Virginia's Learnfare program has run since 1995. Has attendance improved? "I don't have any data on that either," said Carolyn Ellis from the state's Department of Social Services.&#13;</p>
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But all this has not stopped New York from expanding this pilot pro-gram to encompass all its schools--though not without problems. As of January, many schools had not been able to put the program in place, mainly because of a lag in paper work: Clients must sign a release form for their children's educational records to be released. Critics also argue that the program is underfunded. Under the pilot program, the state allocated $1 million to monitor 15,500 students. But this year, 250,000 students would have to be watched, and the budget allocated is only $4 million, forcing New York's elementary schools to handle 16 times more students on only four times more money.&#13;</p>
</div></div></div>Fri, 07 Dec 2001 21:32:03 +0000141939 at http://prospect.orgAlexander NguyenThe Souls of White Folkhttp://prospect.org/article/souls-white-folk
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<p><font size="+2" color="darkred"><b>W</b></font>hen the U.S. Census Bureau asked residents to count off for the new millennium, sharp-eyed individuals noticed a slight oddity in the form's race question: While Asians or Pacific Islanders could pick from among nine boxes (Asian Indian, Chinese, Filipino, Japanese, Korean, Vietnamese, Native Hawaiian, Guamanian, or Chamorro and Samoan), Caucasians had only one box (white). The bureau, theoretically, could have offered a similar menu for whites by including boxes for the Irish, Italians, Polish, and Germans among us. But it did not, and the choice is telling because it implies that if you're white, you're white--what more is there to say?&#13;</p>
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<p>A lot, as it turns out. In recent years, as the president and media leaders such as <i>The</i> <i>New York Times </i>have sought to advance a national conversation about race, a new academic field has sprung up that is devoted to understanding whiteness. By studying white identity-- its history, its relation to minority identity--these scholars want to give whites the ability and vocabulary to participate in race discussions. The field is interdisciplinary, and its methodologies range widely; most observers agree it started in the early 1990s. Among the books that played a prominent role are Toni Morrison's <i>Playing in the Dark: Whiteness and the Literary Imagination</i>, an examination of cultural representations of race in literature; David Roediger's <i>The Wages of Whiteness: Race and the Making of the American Working Class</i> and Noel Ignatiev's <i>How the Irish Became White</i>, two works of labor history; and Theodore Allen's <i>The Invention of the White Race</i>. &#13;</p>
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In whiteness studies, race and racism isn't only a matter of blacks and other minorities getting poorer service at restaurants, paranoid looks in an elevator, pulled over more often, or mortgage applications denied. Racism is also about its <i>converse</i>--about whites getting better service, being pegged less often as crime suspects, and being able to see fellow whites on TV, magazine covers, and so on. "As a white person, I realized I had been taught about racism as something which puts others at a disadvantage," wrote Peggy McIntosh in a much-celebrated 1988 essay on whiteness. "But [I] had been taught not to see one of its corollary aspects, white privilege, which puts me at an advantage." Among the many benefits she enumerated: "Whether I use checks, credit cards, or cash, I can count on my skin color not to work against the appearance of financial reliability... . I can remain oblivious of the language and customs of persons of color who constitute the world's majority without feeling in my culture any penalty for such oblivion." &#13;</p>
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There is a good deal of this sort of writing available now, most of it being offered for the consideration of undergraduate college students. The field of whiteness studies has not exactly caught on and is still dismissed as marginal by some academics. But there are articles, college courses, and conferences, and there have been more than a half-dozen books on this topic in the past two years alone. Wading into this produces a few head-turning moments but also leads one to question whether there is something inherent in the approach of whiteness studies that will prevent it from reaching a wider audience. Indeed, there is reason to question whether the field can survive its own theoretical tensions. &#13;</p>
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<p>That racial matters are about propping whites up as much as about knocking blacks down is poignantly illustrated in <i>White Lies: Race and the Myths of Whiteness</i> by Maurice Berger, who offers a pastiche of personal reflections, interviews with friends, and literary quotations. A Jewish art historian teaching at the New School for Social Research in New York City, Berger grew up in a predominantly black and Hispanic housing project on the Lower East Side. He recalls his mother's life as an example of the influence of skin color. A dark-complexioned Sephardic Jew with a Hispanic-sounding maiden name ("More than once she had been called a spic"), Berger's mother was sharply aware of how her darker skin thwarted her aspirations as an opera singer and so devoted much of her life to trying to lighten her skin. Berger describes her daily beauty regimen: "She would brush her jet-black hair, applying gobs of foul-smelling, viscous pomades in an effort to relax her tight, kinky curls into gentle waves." Afterward, she would apply foundation much lighter than her skin, finishing with "a dusting of chalky face powder." Only then would she turn away from the mirror to let her son and the rest of the world see her. The end product--"layers of greasepaint"--wasn't beautiful but allowed her to pass for white, and being white mattered. &#13;</p>
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<p>Berger discusses white privilege in a way that is personal and emotional, even contrite in parts. In one anecdote, he wrestles with his hatred of a woman of color who beat him out of a college fellowship. This confessional mode can be effective--admission is the first step to recovery, after all--but it also has its limits. Berger is concerned primarily with individual<i> </i>experiences and feelings--either his own or others'. But an individualistic<i> </i>conception of racism hides how whites benefit <i>systemically</i> from whiteness. Berger wants to know what being white means--to individuals, to himself--but the hope of whiteness studies is to determine, objectively, what white identity <i>is</i> because whiteness scholars see the field as being part of a political movement toward racial equality. In this respect, Berger's book falls short.&#13;</p>
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&#13;<br /><i>White Reign: Deploying Whiteness in America</i>, an anthology of essays edited by four education professors, makes a strong political case for studying whiteness and offers the most compelling reasons for why, and why now. <i>White Reign</i> exposes color blindness--the popular take on race relations popularized by Reagan conservatives--as a hoax: It works only if one assumes that being white is no different from being any other race. "This collective white denial of privilege inhibits questions and public reflection on how being White may provide benefits," say the editors. Because of this mind-set, conservatives have been able to point to affirmative action programs or multicultural discussions and recast whites as victims of unfair discrimination. "When conservatives maintain that white people aren't allowed to be White anymore, many young Whites believe that a conspiracy of antiwhite minorities and multiculturalists is repressing their free expression of a white identity." Actually, the book argues, conservatives have been successful in advancing a kind of identity politics by pushing a Eurocentric cultural canon, English-language-only legislation, and a social solidarity of perceived slights.&#13;</p>
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With its tongue-in-cheek dedication, "To Strom Thurmond, William Bennett, Newt Gingrich, Trent Lott, Orrin Hatch, and Jesse Helms," <i>White Reign</i> challenges liberal whites to formulate a "progressive, antiracist white identity as an alternative to the white ethnic pride shaped by the right wing." Without such an alternative, whites will either angrily drop out of the race debate altogether or, by hearkening back to an old, mythic, ethnic identity, try to relate to and participate in the race debate as oppressed members of society. But "[e]ating moussaka on holidays," <i>White Reign </i>argues, "does not a marginalized Greek immigrant make." &#13;</p>
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<p>Whiteness is an ever-shifting category. How the definition of whiteness has changed in America is the subject of <i>Whiteness of a Different Color: European Immigrants and the Alchemy of Race</i> and <i>White by Law: The Legal Construction of Race</i>. The books use divergent methods to arrive at the same conclusion: Whiteness is a racial category that is socially constructed and, hence, entirely arbitrary. "Caucasians are made and not born," argues Matthew Frye Jacobson in <i>Whiteness of a Different Color.</i> As Ian Haney-Lopez writes in <i>White by Law</i>, a legal history of whiteness, "'White' is not a biologically defined group, a static taxonomy, a neutral designation of difference, an objective description of immutable traits, a scientifically defensible division of humankind, an accident of nature unmolded by the hands of people... . 'White' is what we believe it is." The idea that races are socially constructed is an old one. Mark Twain's 1894 novel <i>Pudd'nhead Wilson</i>, for example, was in part about social definitions of race: "To all intents and purposes Roxy was as white as anybody, but the one-sixteenth of her which was black outvoted the other fifteen parts and made her a Negro." And her son, born by a white father, "was thirty-one parts white, and he, too, was a slave, and by fiction of law and custom a Negro. He had blue eyes and flaxen curls."&#13;</p>
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<p>What is new is a challenge to the inevitability of whiteness. If the definition of whiteness is able to shift over time, so the implicit hope of whiteness scholars goes, then it might be possible to expand it to include all people. Or, if the arbitrariness of whiteness can be established, whites may be willing to give up privileges out of a desire for a racially equal society. "Why is it that in the United States a white woman can have black children but a black woman cannot have white children?" Jacobson asks. "Doesn't this bespeak a degree of arbitrariness in this business of affixing racial labels?" &#13;</p>
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Jacobson divides the history of whiteness into three epochs. During the first, starting in the late eighteenth century and culminating in the naturalization law of 1790, citizenship was intended for "free white persons" only. This was because the formulation of the law coincided with the age of exploration, the expansion of the frontier, and slave holding--all of which associated whiteness with "fitness for self government." During the second epoch--the period from 1840 to 1924--this law allowed mass immigration, a result of supply-push factors (slumps in the European economy) and demand-pull factors (American industrialization). America received the Irish fleeing the potato famine, Germans, Scandinavians, Eastern Europeans, Jews, Italians, and Greeks, "none of whom the framers had ever envisioned swelling the polity of the new nation when they crafted its rules for naturalization." During this time, Jacobson reports, whiteness as a category began to fracture into subcategories of races--the Slavs, Hebrews, Iberians, Celts--deemed to be unfit for self-government but still white enough to enter the country. The second period ended with the 1924 Johnson-Reed Act capping immigra-tion at 2 percent of the 1890 census. Whiteness subsequently changed again and morphed into a black-white bipolar structure, with the pseudo-scientific race divisions of Caucasian, Mongolian, and Negroid races marking the third epoch.&#13;</p>
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The point of the book is to show not only the flexibility of racial demarcations, but something more profound: White ethnics gained from their whiteness <i>before</i> they even entered the country. Had the naturalization law of 1790 not restricted citizenship to "free white persons," most white ethnics could not have entered the country in the first place. "It was their <i>whiteness</i>, not any kind of New World magnanimity, that opened the Golden Door," writes Jacobson, implicitly refuting what immigrant families had been taking for granted--that their hard work and pluck allowed them to rise socially and economically. &#13;</p>
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<p><i>White by Law</i> describes how courts joined in the social construction of whiteness. Haney-Lopez, an assistant professor of law at the University of California at Berkeley (where, ironically, a reversion to color-blind admissions has recently reduced the number of minorities entering Boalt Hall), is a proponent of critical race theory, which argues that race is "not an independent given on which the law acts, but rather a social construction at least in part fashioned by law." By tracking some 50 court cases through American history, Haney-Lopez describes how the courts struggled with the question of who exactly was white and why. Because citizenship was restricted to "free white persons," many immigrants argued that they were white and hence should be granted citizenship. The naturalization law, according to Haney-Lopez, shaped natural differences into a rigid hierarchy: To be fit for citizenship meant that one had "agency, will, moral authority, intelligence, and belonging. To be unfit for naturalization--that is, to be non-White--implied a certain degeneracy of intellect, morals, self-restraint, and political values." Haney-Lopez argues that the courts themselves did not have a real definition of who was white and who wasn't, and that the process of determining this was surprisingly muddled. For example, in <i>Ozawa v. United States</i>, a Japanese immigrant argued that even though he was of Asian descent, his skin was nevertheless "white" and he was thus entitled to naturalization. The court, however, argued that white persons included "only persons of what is popularly known as the Caucasian race," and since Ozawa was not Caucasian, his naturalization was denied. Within three months, another Supreme Court case, <i>United States v. Thind</i>, established that an Asian Indian was Caucasian but maintained that this did not make him white. &#13;</p>
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<p>The key insight of this book is that seemingly neutral institutions such as the law can produce racist outcomes nevertheless. The court's decisions influenced reproductive choices (female citizens rarely married noncitizens, for fear that their status would be stripped) as well as housing choices. "Law thus defines, while seeming only to reflect, a host of social relations." And more indicting: "Unconscious racism undergirds the current legal construction of race in two interesting ways. First, it fosters the racially discriminatory misapplication of laws that themselves do not make racial distinctions. Second, it engenders the design and promulgation of racially neutral laws likely to have racially disparate effects." For example, Haney-Lopez reports that prosecutors seek the death penalty against Latinos four times more often than they do for whites for similar crimes and 14 times more often when whites are murdered than when Latinos are.&#13;</p>
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<p>As Haney-Lopez and Jacobson describe it, white privilege is a result not of design but of complex social processes. But there is another school of whiteness studies that does not see all this as "unconscious racism." <i>Whiteness Visible: The Meaning of Whiteness in American Literature and Culture</i> and <i>Making Whiteness: The Culture of Segregation in the South, 1890-1940</i> do not shy away from claiming that white identity was constructed deliberately, often with the express intent to protect (and hide) white privilege while oppressing nonwhites. In <i>Whiteness Visible</i>, for example, Valerie Babb, a professor of English at Georgetown University, writes, "To study whiteness and its history in the United States is to study an intentional 'whitewashing' of American character that even today makes achieving racial parity difficult." At stake was the creation of something around which new immigrants could unite themselves, a project that was difficult simply because the category wasn't real. Babb writes, "Part of the difficulty in characterizing whiteness lies with its having no genuine content other than a culturally manufactured one ... the need to create a historical past, the need to create a national identity, and the need to minimize class warfare." Babb chronicles the ways in which American art and literature in the form of travel documents, world's fairs, settlement houses, etiquette books, and public school curricula all skillfully used the captivity narrative--exemplified by John Vanderlyn's <i>Death of Jane McCrea</i>, in which pioneers are attacked by Native Americans--and the criminal narrative of blacks attacking whites to foster a conception of whiteness that placed whites over other minorities. Thus, "conceptions of whiteness assisted in forging ties among people who had no natural ties, by inventing a series of myths to hold them together." &#13;</p>
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<p>In <i>Making Whiteness</i>, Grace Elizabeth Hale contends that the end of slavery in the South after the Civil War gave whites an incentive to create a segregationist cultural system that retained the implication of white superiority in an ostensibly egalitarian nation. Backed by a commercial system that made the production and reproduction of visual imagery efficient, whites were able to use icons and images such as Aunt Jemima (who, in her early ads used to say, "I'se in town, honey") and Uncle Ben to resurrect the role of blacks as servants and, by extension, to cement the superiority of whites through advertising. The cultural imagery was often concurrently reinforced by the spectacle of lynchings, which put blacks in their place. To Hale as well as Babb, the construction of whiteness was an intentional process.&#13;</p>
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<p>Although these books on whiteness studies are enlightening, their potential to bring whites back into the race debate is limited--which is perhaps why the field has not caught on. Instead of giving whites an identity that they can invoke in joining the "conversation on race," most of the literature shows that white identity is nothing but a hoax, a cultural fiction, formed to endow benefits on their holders. "There is Italian culture, and Polish, Irish, Yiddish, German, and Appalachian culture," says Noel Ignatiev. "There is youth culture and drug culture and queer culture; but there is no 'white' culture--unless you mean Wonder Bread and television game shows. Whiteness is nothing but an expression of race privilege."&#13;</p>
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<p>In their focus on white privilege, these studies allocate guilt to the very same whites the field aims to reach and encourage to speak up. Much, if not all, of whiteness studies is ultimately about unearned advantages. Most whites will bristle at the notion that the only reason they find themselves in the position they are in is due to privilege. Yet this battle over guilt and innocence has been the very same battle that has gridlocked race discussions. As Shelby Steele notes, "<i>Innocence is power</i>... . I think the racial struggle in America has always been primarily a struggle for innocence." Blacks certainly have engaged in this struggle, and so have whites. As Thomas Ross writes in the <i>Vanderbilt Law Review</i>, "The rhetoric of innocence persists as an important tool in discussions of race... . When the white person is called the innocent victim of affirmative action, the rhetorician is invoking not just the idea of innocence but also that of the not innocent, the defiled taker."&#13;</p>
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At the same time, the recognition of white privilege is bound to instill guilt. Vada Berger, for example, writes, "The truly disturbing aspect of <i>Bakke</i> and similar cases is the focus on the sacrifice of the 'innocent' white victim. I have yet to meet any innocent whites... . Why do whites deserve to attend the school? They deserve to attend because they scored higher on a racially biased test, one of their parents is an alumnus of the school, one of their ancestors provided large donations to the school, they attended a suburban high school where they received individual attention and/or they attended a college with an outstanding reputation... . Every accomplishment they would like to claim as their own is tainted by having been gained through their whiteness. Therefore, the truly questionable group in any medical school setting, the ones who should operate in a cloud of suspected incompetency, are the white students." Is whiteness studies then really that much different from the old liberal race-speak?&#13;</p>
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There is, it must be said, a crucial difference. Whiteness studies is a revolt against color blindness, albeit a revolt spurred by contrition. Whites may be the beneficiaries of unearned privilege, but they also have agency in this matter. Noel Ignatiev, for example, calls for whites to reject the privileges of white skin. In this abolitionist vision, "the white race consists of those who partake of the privileges of the white skin in this society." It calls on whites to disavow their white privilege; this of course may be easier said than done--how can you fight the privilege of not being pulled over by police?--but is crucial to the abolitionist stance. "The white race is a club, which enrolls certain people at birth, without their consent, and brings them up according to its rules. For the most part the members go through life accepting the benefits of membership, without thinking about the costs... . The weak point of the club is its need for unanimity." Thus, by having a small number of whites act as "race traitors," proponents hope to collapse the white privilege system. If a racist joke is told, a white person who is a traitor should say, "Oh, you probably said that because you think I'm white. That's a mistake people often make because I look white." Because whites can't be sure who will speak up in this way, they will stop making slurs. But a solution that depends on individual goodwill rather than systemic remedy may be no solution at all. ¤&#13;<br />
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</center></div></div></div>Thu, 06 Dec 2001 00:08:36 +0000141671 at http://prospect.orgAlexander NguyenThe e-GOPhttp://prospect.org/article/e-gop
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>As the high-tech sector has grown as an industry, its bankroll of financial contributions to politicians has swollen as well (over $3.8 million so far this year). So it's no surprise that presidential candidates are now flocking to Silicon Valley, or that firms like AOL and eBay are forming their own political action committees to dole out cash. What is surprising is how much of that new high-tech money is going to Republicans. </p>
<p>Historically, Silicon Valley has been reliably Democratic territory. In 1992, for example, Microsoft gave Republicans only 21 percent of its campaign contributions. By the 1998 election cycle, however, the GOP share of Microsoft contributions had grown to 66 percentand so far in 1999, Republicans have captured 54 percent of total computer industry contributions. Microsoft has also donated $331,000 in soft money in 1999, almost all of it to Republicans. "There's the perception that Silicon Valley is Clinton-Gore country," says Holly Bailey, researcher at the Center for Respon-sive Politics. "But Republicans this year have gone after Silicon Valley to make them aware . . . 'We're the party for you.'" </p>
<p>Leading the Republicans' high-tech soft-money grab is Virginia Representative Thomas Davis, head of the Republican National Congressional Committee (RNCC). "For a long time," he recently told <i>The Hill</i>, "the Democrats have had the run of Silicon Valley and even Northern Virginia. . . . You're going to see the money, the candidates, and constituency shift now." </p>
<p>A former info-tech company employee himself, Davis has been instrumental in connecting Republicans with cyber-money. According to Bailey, almost every week Republicans have boarded California-bound planes at Davis's behest to raise money in Silicon Valley. As of July, these efforts had helped the RNCC break the record for fundraising during a nonelection year with $26 million in six months. Davis also organized a high-technology round table of 100 computer executives who each would contribute $10,000 to the GOP. And Davis has spared no effort pushing legislation that leaves no doubt who the computer industry's friends are in Washington. Having sponsored the Year 2000 Readiness and Responsibility Act protecting companies from suits resulting from Y2K problems, he also proposed giving computer companies a $1.7-billion tax break over the next decade. "Representative Davis has been absolutely shameless in his pursuit of computer industry cash," said Ellen Miller, whose organization Public Campaign last month gave the Golden Leash award to Davis for being the top House recipient of computer cash during the 1998 election cycle.</p>
</div></div></div>Wed, 14 Nov 2001 22:02:16 +0000142117 at http://prospect.orgAlexander NguyenRising Tide?http://prospect.org/article/rising-tide-0
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>"They almost have a nostalgic quality about them, sort of like the bell bottoms stuck in the back of the closet," writes Jeffrey M. Berry of today's quixotic and starry-eyed liberals. "But liberalism is not dead. Indeed, it's thriving."</p>
<p>In The New Liberalism: The Rising Power of Citizen Groups, Berry marshals copious evidence that over the past four decades, liberal citizen groups have outperformed conservative groups and business lobbies in almost every regard—commanding more positive media attention, winning more legislative victories, and indeed lasting longer as organizations.</p>
<p>It is an interesting finding but true about just one narrowly defined band of liberalism. Berry admits that traditional liberalism, the kind primarily concerned with economic equality, is in decline. What he discusses is a new type of liberalism—he calls it post materialism—which addresses the environment, consumer protection, civil rights, and other nonmaterial quality-of-life issues. Postmaterial groups effectively influence congressional agendas and outcomes, he says, because they converted the social activism of the 1960s into "well-functioning bureaucracies" and became indispensable technical experts to government officials.</p>
<p>The result may not be good news at all for liberals, especially for old economic-equality progressives, for Berry's postmaterialism is a liberalism of the affluent. "It may be that Ralph Nader liberalism helped to crowd out Hubert Humphrey liberalism," as Berry himself suggests; a postmaterial liberal agenda would aim for a cleaner environment and child-safe bottles while ignoring issues more pressing for the disadvantaged, such as a living wage or adequate housing.</p>
<p>The proliferation of apparently successful liberal citizen groups could even prevent the formation of broader liberal visions and coalitions. So many groups competing for donors may keep liberalism too fragmented and specialized to capture a political majority, as Karen Paget has argued in The American Prospect [see "Citizen Organizing: Many Movements, No Majority," Summer 1990]. Berry himself is able to find liberals more successful than conservatives because he examines only their lobbying, not electoral politics.</p>
<p>Also worrisome is Berry's acceptance of a kind of checkbook democracy. "The greatest virtue of these [citizen] groups," he says, "is that they represent us in the political process. . . . As attractive as the model of democracy idealized by Tocqueville (and espoused by Putnam) is, the reality is that most governing in America is done by representatives who act on citizens' behalf rather than by participatory institutions." Yet participatory democracy is more democratic because citizens donate time. Berry's citizen groups employ only experts, and citizens can contribute to the cause only by donating money, for which no upper limit exists. As Sidney Verba has pointed out, "When money replaces time as the principal form of political currency, the playing field is no longer level."</p>
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<!-- dhandler for print articles --></div></div></div>Fri, 13 Apr 2001 21:08:11 +0000140748 at http://prospect.orgAlexander Nguyen